                                                                           PD-0381-15
                                                          COURT OF CRIMINAL APPEALS
                                                                          AUSTIN, TEXAS
                                                          Transmitted 5/6/2015 3:30:36 PM
                                                            Accepted 5/7/2015 1:11:41 PM
                      No. PD-0381-15                                       ABEL ACOSTA
                                                                                   CLERK
    _____________________________________________________

       IN THE COURT OF CRIMINAL APPEALS OF TEXAS
                       AUSTIN, TEXAS
    _____________________________________________________

                    ADRIAN LEE WHITEMON

                                   Appellant-Petitioner

                             vs.


                     THE STATE OF TEXAS

                                    Appellee-Respondent
    _____________________________________________________

             Petition for Discretionary Review from the
              Second Court of Appeals, Tarrant County
                  Appeal Number 02-13-00380-CR
    _____________________________________________________

     APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                         May 6, 2015
    _____________________________________________________



                                    Lisa Mullen
                                    Attorney at Law
      May 7, 2015                   3149 Lackland Road, Suite 102
                                    Fort Worth, Texas 76116
                                    (817) 332-8900
                                    State Bar No. 03254375
                                    Lisa@MullenLawOffice.com




Oral argument requested
                                                      Table of Contents

Table of Contents………………………………………………………….ii

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..iii

Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..iv

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Statement of Procedural History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . …....iv
Identity of Parties....................................................................................................v
Grounds Presented for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......1
Ground 1.………………………………………………………………….....2

THE COURT OF APPEALS ERRED IN FINDING THAT, ALTHOUGH THE
TRIAL COURT ERRED IN SUSTAINING THE STATE’S STANDEFER
OBJECTIONS TO THREE QUESTIONS IN VOIR DIRE, SUCH ERROR WAS
HARMLESS EVEN THOUGH IT DENIED PETITIONER’S RIGHT TO
INTELLIGENTLY EXERCISE HIS PEREMPTORY CHALLENGES

Ground 2………………………………………………………………………6

THE COURT OF APPEALS ERRED IN THEIR INABILITY TO
DETERMINE WHETHER VOIR DIRE QUESTIONS WERE
IMPROPER COMMITMENT QUESTIONS DUE TO THE
CONFUSION WROUGHT BY THE STANDEFER STANDARD

Conclusion and Prayer for Relief………………………………………….11

Certificate of Service………………………………………………………12

Certificate of Compliance………………………………………………....12

Appendix…………………………………………………………………..13

EXHIBIT A: Second Court of Appeals’ March 5, 2015, published,
           Opinion

EXHIBIT B: Voir Dire questions




                                                                      ii
                                                 TABLE OF AUTHORITIES

Cases
Atkins v. State, 951 S.W.2d 787 (Tex. Crim. App. 1997) ............................................................................... 4
Barajas v. State, 93 S.W.3d 36, 45 (Tex. Crim App. 2002) ........................................................................... 7
Belcher v. State, 96 Tex. Crim. 382, 257 S.W. 1097 (1924) .......................................................................... 5
Bowser v. State, 865 S.W.2d 482 (Tex. App. – Corpus Christi 1993, no. pet.) .............................................. 4
Burress v. State, 20 S.W.3d 179 (Tex. App. – Texarkana 2000, pet. ref’d) ................................................4, 6
Castillo v. State, 913 S.W.2d 529 (Tex. Crim. App. 1995) ............................................................................ 7
Clemments v. State, 940 S.W.2d 207 (Tex. App. – San Antonio 1996, pet. ref’d) ......................................... 5
Connors v. United States, 158 U.S. 408(1895)............................................................................................... 5
Contreras v. State, 56 S.W.3d 274 (Tex. App. –Houston [14th Dist.] 2001, pet. ref’d).................................. 5
De La Rosa v. State, 414 S.W.2d 668 (Tex. Crim. App. 1967) ...................................................................... 5
Delrio v. State, 840 S.W.2d 443 (Tex. Crim. App. 1992) .............................................................................. 5
Duncan v. State, 79 Tex. Crim. 206, 184 S.W. 195 (1916) ............................................................................ 5
Everitt v. State, 407 S.W.3d 259 (Tex. Crim. App. 2013)……………………………………………………4
Ex Parte McKay, 819 S.W.2d 478 (Tex. Crim. App. 1990) ........................................................................... 4
Franklin v. State, 138 S.W.3d 351(Tex. Crim. App. 2004) .........................................................................4, 5
Garrett v. State, 851 S.W.2d 853 (Tex. Crim. App. 1995) ............................................................................. 7
Garza v. State, No. 08-12-00149-CR (Tex. App. – El Paso, delivered December 19th, 2013) ...................... 4
Gonzales v. State, 2 S.W.3d 600 (Tex. App. – Texarkana 1999, pet. ref’d) ................................................4, 6
Hernandez v. State, 536 S.W.2d 947 (Tex. Crim. App. 1978) ....................................................................... 7
Holmes v. State, 52 Tex. Crim. 353, 106 S.W. 1160 (1908) .......................................................................... 5
Johnson v. State, 43 S.W.3d 1 (Tex. Crim. App. 2001) ................................................................................. 5
Linnell v. State, 935 S.W.2d 426 (Tex. Crim. App. 1996) ............................................................................. 6
Mathis v. State, 167 Tex. Crim. 627, 322 S.W. 2d 629 (Tex. Crim. App. 1959) ........................................... 4
McGee v. State, 35 S.W.3d 294 (Tex. App. –Texarkana 2001, pet. ref’d) ..................................................... 5
Moore v. State, No. 04-12-00490-CR (Tex. App. – San Antonio, delivered June 19, 2013) (not designated
  for publication) ........................................................................................................................................... 4
Nunfio v. State, 808 S.W.2d 482 (Tex. Crim. App. 1991) .............................................................................. 7
Rosales-Lopez v. United States, 451 U.S. 182 (1981) .................................................................................... 5
Shiply v. State, 790 S.W.2d 604 (Tex. Crim. App. 1990) ............................................................................... 4
Standefer v. State, 59 S.W.3d 177 (Tex. Crim App. 2001) ............................................................................ 7
Whitemon v. State, No. 02-13-00380-CR (Tex. App. – Fort Worth, delivered March 5th, 2015 ........... passim
Willkinson v. State, 120 Tex. Crim. 284, 47 S.W.2d 819 (1932).................................................................... 5
Rules
Rule 9.4(i)(2) of the Texas Rules of Appellate Procedure.............................................................................12
Tex. R. App. Pro. 66.3 .................................................................................................................................2, 6
Treatises
John R. Gillespie, Fear of Commitment? In Standefer v. State the Texas Court of Criminal Appeals
  Clarifies the Role of Commitment Questions in Jury Selection in Criminal Trials, 54 Baylor L. rev. 581,
  601 (2002) .................................................................................................................................................. 7
Constitutional Provisions
Tex. Const., art. I, sec. 10 ............................................................................................................................... 4
Tex. Const., art. I, sec. 15 ............................................................................................................................4, 5
U.S. Const., Amend VI ................................................................................................................................4, 5
U.S. Const., Amend XIV ................................................................................................................................ 4


                                                                               iii
                      Statement Regarding Oral Argument

       Petitioner believes oral argument would assist this Court in the discussion and

exploration of the issues presented. Because this petition presents important issues of

jurisprudential value, its disposition will have significant impact on the bench and bar of

the State of Texas. Therefore, Petitioner respectfully requests the opportunity to

participate in oral argument in the instant case.

                                 Statement of the Case

           This is an appeal from a jury trial on a two count indictment for simple

Possession and Possession with Intent to Deliver a Controlled Substance of Four Grams

or more, but less than 200 Grams, Namely Cocaine. CR- 5. Petitioner plead not guilty to

both counts and the jury found him guilty of only the simple possession. CR- 77. After a

sentencing hearing before the court, in which Petitioner’s punishment was enhanced to

habitual status, the judge assessed punishment at 35 years’ incarceration in the

Institutional Division of Texas Department of Criminal Justice. CR – 77. Petitioner

timely filed written notice of appeal and the trial court certified his right of appeal. CR –

82 - 83.

                         Statement of Procedural History

 On May 6, 2014, Petitioner’s brief was timely filed raising three points of error. On

March 5, 2015, the Second Court of Appeals found error in the denial of three voir dire

questions, but held the error harmless and denied the remaining points of error to affirm




                                               iv
the conviction. 1 A Motion for Rehearing was not filed. This court granted an extension

of time to file this petition for discretionary review which is presently due on May 6th,

2015, and will be timely filed.




                                    Identity of Parties


    1- The Honorable Ruben Gonzalez, Jr., presiding, from the 423nd District Court,
    Tarrant County Texas. Cause Number 1209550

    2- Mr. Loyd Whelchel and Mr. Lucas Allen
    Assistant District Attorney, Tarrant County
    401 West Belknap
    Fort Worth, Texas 76196

    3- Mr. Dan Pitzer, Esq., trial counsel
    204 North Main Street
    Mansfield, Texas 76063

    4- Mr. Adrian Lee Whitemon, Petitioner
    Tulia Transfer Center
    4000 Highway 86 West
    Tulia, Texas 79088

    5- Tarrant County District Attorney's Office, Respondent Counsel
    401 West Belknap
    Fort Worth, Texas 76196




1
 Whitemon v. State, No. 02-13-00380-CR (Tex. App. – Fort Worth, delivered March 5th,
2015 (Attached as Appendix Exhibit A).
                                             v
                  Grounds Presented for Review

GROUND ONE:
THE COURT OF APPEALS ERRED IN FINDING THAT, ALTHOUGH THE TRIAL
COURT ERRED IN SUSTAINING THE STATE’S STANDEFER OBJECTIONS TO
THREE QUESTIONS IN VOIR DIRE, SUCH ERROR WAS HARMLESS EVEN
THOUGH IT DENIED PETITIONER’S RIGHT TO INTELLIGENTLY EXERCISE HIS
PEREMPTORY CHALLENGES

GROUND TWO:
THE COURT OF APPEALS ERRED IN THEIR INABILITY TO
DETERMINE WHETHER VOIR DIRE QUESTIONS WERE IMPROPER
COMMITMENT QUESTIONS DUE TO THE CONFUSION WROUGHT BY
THE STANDEFER STANDARD




                                1
            Argument Amplifying Reasons for Granting Review

Ground 1: THE COURT OF APPEALS ERRED IN FINDING THAT, ALTHOUGH
THE TRIAL COURT ERRED IN SUSTAINING THE STATE’S STANDEFER
OBJECTIONS TO THREE QUESTIONS IN VOIR DIRE, SUCH ERROR WAS
HARMLESS EVEN THOUGH IT DENIED PETITIONER’S RIGHT TO
INTELLIGENTLY EXERCISE HIS PEREMPTORY CHALLENGES


                       REASONS FOR GRANTING REVIEW


   1) Review should be granted pursuant to Tex. R. App. Pro.66.3 (c) and (a) because
      the court of appeals has decided an important question of state and federal law-
      i.e., that it is harmless to erroneously deny a proper voir dire question- in a way
      that conflicts with the applicable decisions of the Court of Criminal Appeals, the
      United States Supreme Court and other courts of appeals’ decisions.

   2) Review should be granted pursuant to Tex. R. App. Pro. 66.3 (f) because the court
      of appeals has so far departed from the accepted and usual course of judicial
      proceedings in their incorrect application of the law regarding harm analysis
      where the defense has been prevented from the intelligent exercise of peremptory
      challenges through the erroneous denial of the right to ask a proper question so as
      to call for the exercise of this Court’s supervisory power.

   3) Review should be granted pursuant to Tex. R. App. Pro. 66.3 (b) because the court
      of appeals has decided an important question of state law i.e., the denial of proper
      defense questions in voir dire under Standefer is harmless error even though it
      violates constitutional rights, that is an important issue that has not been, but
      desperately needs to be, settled and clarified by this Court.


   In the instant case, trial counsel was questioned the venire regarding their ability to follow

the law defining “possession” of drugs and “mere presence”. R. Vol. II – 90 – 91 (Voir Dire

questioning attached as exhibit B). Counsel queried:

       Mr. Pitzer: Do you think a person should be guilty if they walk in a house unaware that

       there’s controlled substances?

                                                 2
   Mr. Whelchel: Objection.

   The Court: I couldn’t hear. Can you restate it?

   Mr. Pitzer: I was asking Mr. Cassaday if he believed that a person should be guilty if he

   walked into a house of someone else that contained controlled substances, but I’ll - - I’ll

   rephrase that.

   The Court: Your objection - - okay. He’s withdrawn the question.

   Mr. Pitzer: If a person walks into a house, somebody else’s house and there’s controlled

   substance in there, do you think that means they’re automatically guilty?

   Mr. Whelchel: Objection, improper under Standefer.

   The Court: Sustained. Rephrase.

   Mr. Pitzer: 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?

   Mr. Whekchel: Objection under Standefer.

   The Court: Sustained. Rephrase.

   Mr. Pitzer: 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?

   Prospective Juror: Yes.

   Mr. Pitzer: Okay. The fact that there in mere proximity of it wouldn’t necessarily be

   enough to convince you?

   Mr. Welchel: Objection under Standefer.

   The Court: Sustained.

R. Vol. II – 90 – 91 (attached as Exhibit B).


                                                3
         The lower court, in their own words “assumedly” held the following three of these

    questions to be proper; thus, finding the trial court erred in denying the questions:

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

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

         3- The fact that the[y are] in mere proximity of it wouldn’t necessarily be enough
              to convince you? 2


The court then stated, “ [w]e 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 the State’s

objections to Appellant’s … questions , we hold that such error was harmless. 3 Further, the

court held that trial counsel is required to object to the court’s sustaining of the state’s objection

in order to preserve error. 4 Thus, because counsel did not object to the court repeatedly

sustaining the state’s Standefer objection, error was waived. 5 These holdings directly ignore and

conflicts with this Honorable Court’s opinions, other court of appeals’ opinions, longstanding

Supreme Court precedent and state and federal constitutional guarantees. 6

2
  Whitemon v. State, No. 02-13-00380-CR (Tex. App. – Fort Worth, delivered March 5th, 2015) (Attached as
Appendix Exhibit A) (emphasis supplied).
3
  Id.at 11.
4
  Id. at 11.
5
  Interestingly enough, the court cites Everitt v. State, 407 S.W.3d 259 (Tex. Crim. App. 2013) for this proposition.
However, Everitt stands for an entirely different and counter position. In Everitt, this Court held the lower court
erred in finding no preservation of error stating, “[t]he court of appeal’s parsing of Appellant’s objections is the kind
of hyper-technical analysis that we have repeatedly rejected.”
6
  Tex. Const., art. I, sec. 10, 15; U.S. Const., Amend VI, XIV; Burress v. State, 20 S.W.3d 179 (Tex. App. –
Texarkana 2000, pet. ref’d); Bowser v. State, 865 S.W.2d 482 (Tex. App. – Corpus Christi 1993, no. pet.);
Clemments v. State, 940 S.W.2d 207 (Tex. App. – San Antonio 1996, pet. ref’d); Gonzales v. State, 2 S.W.3d 600
(Tex. App. – Texarkana, 1999 pet. ref’d); Mathis v. State, 167 Tex. Crim. 627, 322 S.W. 2d 629 (Tex. Crim. App.
1959); Atkins v. State, 951 S.W.2d 787 (Tex. Crim. App. 1997); Shiply v. State, 790 S.W.2d 604 (Tex. Crim. App.
1990); Ex Parte McKay, 819 S.W.2d 478 (Tex. Crim. App. 1990); Franklin v. State, 138 S.W.3d 351 (Tex. Crim.
                                                             4
       The law is replete; an accused’s state and federal rights to representation by effective

counsel, due process and the right to a fair and impartial jury, includes counsel’s right to question

the members of the jury panel in order to intelligently use peremptory challenges. 7 This is not a

‘fray’ but a guarantee of constitutional magnitude. Perhaps the greatest goal of voir dire is to

afford the accused the right to a fair and impartial jury, a right deeply rooted in the Sixth

Amendment and indelibly attached to Due Process within the Texas constitution and decades of

its jurisprudence. 8 Where a question is proper and the accused is prevented from asking it, harm

is presumed because the accused could not intelligently exercise his peremptory challenges

without the information gained from the answer. 9

           Voir dire is the single process by which bias and prejudice which could prevent a fair,

impartial consideration of the evidence and the law, is exposed. Thus, “if a question is proper,

the denial of an answer prevents the intelligent exercise of peremptory challenges and harm is

shown.” 10 There is no requirement for counsel to further object to the court’s action. To hold

otherwise would render Standefer wholly unconstitutional in application. The lower court

completely disregarded this fundamental concept of law. In this regard, it has so minimized and

incorrectly applied the law regarding implicit harm as required by the state and federal




App. 2004); De La Rosa v. State, 414 S.W.2d 668 (Tex. Crim. App. 1967); Connors v. United States, 158 U.S.
408(1895); Rosales-Lopez v. United States, 451 U.S. 182 (1981).
7
  Id.; Contreras v. State, 56 S.W.3d 274 (Tex. App. –Houston [14th Dist.] 2001, pet. ref’d); McGee v. State, 35
S.W.3d 294 (Tex. App. –Texarkana 2001, pet. ref’d).
8
  Id.; U.S. Const. amend. VI; Tex. Const. art. I, sec. 15; Franklin v. State, 138 S.W.3d 351(Tex. Crim. App. 2004);
Duncan v. State, 79 Tex. Crim. 206, 184 S.W. 195 (1916); Holmes v. State, 52 Tex. Crim. 353, 106 S.W. 1160
(1908); Delrio v. State, 840 S.W.2d 443 (Tex. Crim. App. 1992).
9
  Id.; Bowser, 865 S.W.2d at 485 – 486; Clemments, 940 S.W.2d at 210; Willkinson v. State, 120 Tex. Crim. 284, 47
S.W.2d 819 (1932); Johnson v. State, 43 S.W.3d 1 (Tex. Crim. App. 2001); Belcher v. State, 96 Tex. Crim. 382, 257
S.W. 1097 (1924) .
10
   Id.; Clemments, 940 S.W.2d at 210 (emphasis supplied).
                                                            5
constitution, case law from other courts of appeals, the United States Supreme Court and this

Court as to require corrective intervention of this Court 11.

        For all the foregoing reasons, the court of appeals erroneous diminished the Due Process

requisites of a fair trial and the right to effective assistance of counsel in holding harmless the

erroneous exclusion of proper voir dire questions requiring review and reversal of this Court.

Review should further be granted because the question of whether it is harmless to deny a proper

voir dire question is an important question of law decided by the court in a way that conflicts

with many decisions of the Court of Criminal Appeals, the United States Supreme Court and

other courts of appeals’ decisions. Finally, review is most earnestly requested because the court

of appeals has decided an important question of state law i.e., whether the denial of proper

defense questions in voir dire under Standefer is harmless error, even though it violates

constitutional rights, which is an important issue that has not been, but desperately needs to be,

settled and clarified by this Court.



Ground 2: THE COURT OF APPEALS ERRED IN THEIR INABILITY TO
DETERMINE WHETHER VOIR DIRE QUESTIONS WERE IMPROPER
COMMITMENT QUESTIONS DUE TO THE CONFUSION WROUGHT BY THE
STANDEFER STANDARD

                            REASONS FOR GRANTING REVIEW

1)Review should be granted pursuant to Tex. R. App. Pro. 66.3 (b) because the court of
appeals has decided an important question of state law i.e., what exactly is an
impermissible commitment question under Standefer, in such a convoluted manner that it
exemplifies this is an issue that has not been, but desperately needs to be, settled and
clarified by this Court.


11
  Id.; See Gonzales v. State, 2 S.W.3d 600 (Tex. App. – Texarkana 1999, pet. ref’d); Linnell v. State, 935 S.W.2d
426 (Tex. Crim. App. 1996); Burress v. State, 20 S.W.3d 179 (Tex. App. – Texarkana 2000, pet. ref’d).
                                                         6
2)Review should be granted pursuant to Tex. R. App. Pro.66.3 (c) and (a) because the
court of appeals has decided an important question of state and federal law- i.e., what
really is an erroneous Standefer commitment question - in a way that conflicts with the
applicable decisions of the Court of Criminal Appeals and other courts of appeals’
decisions.

3)Review should be granted pursuant to Tex. R. App. Pro. 66.3 (f) because the court of
appeals has so far departed from the accepted and usual course of judicial proceedings in
their incorrect application of the law of Standefer so as to call for the exercise of this
Court’s supervisory power.


     In Standefer v. State, this Court, in a 5-4 decision with two judges concurring, attempted to

simplify the practice of deciding which types of commitment questions are proper 12. Despite best

intentions, the opinion ultimately, and in real world application, has exacted quite the opposite

effect. The Standefer test has simply generated complete confusion and, thereby, the deprivation

of constitutional rights. 13

     In the instant case, the court of appeals quite literally “presumably” finds three of the

questions defense counsel proffered in voir dire to not be improper commitment questions under

Standefer. 14 However, because it is extremely difficult to discern the lower court’s quite

convoluted reasoning as to why the questions do or do not meet the Standefer criteria, it is




12
   Standefer v. State, 59 S.W.3d 177 (Tex. Crim App. 2001).
13
   See Standefer v. State, 59 S.W.3d at 185 (Price, J., dissenting) and at 187 (Johnson, J., joined by Meyers, Price, &
Holcomb, JJ., dissenting); Standefer, 59 S.W.3d at 183 n. 28; Hernandez v. State, 536 S.W.2d 947 (Tex. Crim. App.
1978); Barajas v. State, 93 S.W.3d 36, 45 (Tex. Crim App. 2002) (overruling Nunfio v. State, 808 S.W.2d 482 (Tex.
Crim. App. 1991) (Meyers & Holcomb, JJ., dissenting); Castillo v. State, 913 S.W.2d 529 (Tex. Crim. App. 1995);
Garrett v. State, 851 S.W.2d 853 (Tex. Crim. App. 1995); John R. Gillespie, Fear of Commitment? In Standefer v.
State the Texas Court of Criminal Appeals Clarifies the Role of Commitment Questions in Jury Selection in
Criminal Trials, 54 Baylor L. rev. 581, 601 (2002)(Nunfio decision ‘set forth an unworkable standard that provided
no reasonable limitation on the parties’ ability to ask questions”).
14
   Whitemon v. State, No. 02-13-00380-CR (Tex. App. – Fort Worth, delivered March 5th, 2015) (Opinion attached
as Exhibit A)
                                                            7
difficult to even know what the courts’ actual findings were. In this regard, the lower court’s

opinion bears testament to the mass confusion wrought by Standefer and its progeny. 15

        The lower court stated as to the question “If a person walks into a house, somebody else’s

house[,] and there’s 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. … It may, however, run afoul of the prohibition against
        asking how a juror will respond to the specific facts of the case at bar. … The question
        may inquire about venire member’s reaction to the specific facts of this case rather than
        his ability to follow the law, as discussed in Atkins. 16


This reasoning reflects the fundamental confusion and misunderstanding and, thereby

misapplication, that plagues the Standefer standard and is exhibited by the vast majority of

litigants and judges throughout this state. 17The lower court appears to honestly not know whether

this question is improper under Standefer; thus, it surmises it “may” run afoul or “may” inquire

of fact as forbidden by Atkins. 18 It goes on to simply “assume” the trial court erred in sustaining

the prosecutor’s Standefer objection. 19

        As to the second question, “ [d]o 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?” the court’s entire reasoning was as follows:




15
   See note 11.
16
   Whitemon v. State, No. 02-13-00380-CR (Tex. App. – Fort Worth, delivered March 5th, 2015) (Attached as
Appendix Exhibit A).
17
   See note 11.
18
   Whitemon v. State, No. 02-13-00380-CR (Tex. App. – Fort Worth, delivered March 5th, 2015) (Attached as
Appendix Exhibit A).
19
   Id.
                                                       8
         This is a closer inquiry, because the question includes the fact that the contraband is in a
         habitation but also an inquiry into the law upon which Appellant was entitled to rely:
         mere presence is not sufficient to support conviction. 20


Although the court finds this a “closer inquiry”, the questions remains; is it a proper or improper

question under Standefer? The court never explains further. Once again, this bears testament to

the instant court’s, as well as numerous others, who are left drifting in a sea of confusion as to a

workable understanding and application of the Standefer standard. 21

         Lastly, as to the question “The fact that the[y are] in mere proximity of it wouldn’t

necessarily be enough to convince you?”, the court reasoned,

        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. 22


Once again, this is the sum total of the legal reasoning of the court. Although it appears the court

is finding this an improper commitment question, the court does not state so. Nor does the court

properly address the Standefer criteria in application and wholly ignores the issue of whether the

question includes facts that lead to a proper challenge for cause. Nonetheless, the court then goes

on to perplexingly “assume” the trial court erred in sustaining the state’s objection. 23

         The sheer confusion in the court’s analysis reinforces the fact the Standefer rule is too

complex and unworkable in application, so much so, the bench and bar alike are left awash in

conflict and misapplication. 24 It is well time this Honorable Court addresses this issue and



20
   Id.
21
   See note 11.
22
   Id.
23
   Id.
24
   See note 11.
                                                   9
revisit Standefer and its progeny to create a workable, bright-line rule for proper voir dire

questions.

           Further, and of greatest importance, the very fact Standefer evokes such immense

confusion in application as to what questions are permissible constantly jeopardizes

constitutional rights. 25 The right to a fair and impartial jury is deeply rooted in the efficacy of the

voir dire process and the right to querie prospective jurors in order to intelligently exercise

peremptory strikes and challenges for cause. This process is wholly vulnerable to counsels’

ability to competently question jurors. When both bench and bar are continuously, fundamentally

confused as to what questions are proper, the result is a process fraught with conflict, mistakes

and injustice.

           For all the foregoing reasons, this petition for discretionary review should be granted.

The court of appeals erred in their inability to discern whether voir dire questions were improper

commitment questions due to the confusion caused by the Standefer standard. This is an

immensely important question of law that has caused continuously conflicting case law, court

rulings and trial objections and resulted in constitutional infringements and, as such, is an issue

that desperately needs to be addressed, settled and clarified by this Court. Lastly, review should

be granted because the court of appeals has so far departed from the accepted and usual course of

judicial proceedings in their incorrect application of the law of Standefer so as to call for the

exercise of this Court’s supervisory power.




25
     See notes 4, 6 & 11.
                                                    10
                         Conclusion and Prayer for Relief

       WHEREFORE, ALL PREMISES CONSIDERED, petitioner respectfully

prays this Court grant review and, after a full briefing on the merits, issue an opinion

resolving this important issue so that the bench and bar of this state will know how to

address similar issues in the future as well as reverse the Second Court of Appeals’

findings of harmless error. Appellant additionally prays for such other and further relief

as he may show himself deserving, at law and in equity.




                                                      Respectfully submitted,



                                                     Lisa Mullen
                                                      ___________________________
                                                      /s/ Lisa Mullen
                                                      Attorney at Law
                                                      3149 Lackland Road, Suite 102
                                                      Fort Worth, Texas 76116
                                                      (817) 332-8900
                                                      State Bar No. 03254375
                                                      Lisa@MullenLawOffice.com




                                             11
                                   Certificate of Service

          I hereby certify that a true copy of this document was served on May 6th, 2015, by

mail delivery upon Assistant District Attorney Charles Mallin, Appellate Section, Tarrant

County District Attorney’s Office, 401 West Belknap, Fort Worth, Texas 76104, and by

mail delivery upon the Office of the State Prosecuting Attorney, P.O. Box 13046, Capitol

Station, Austin, Texas 78711.




                                             Lisa    Mullen
                                             ___________________________________
                                             /s/ Lisa Mullen
                                             Attorney at Law



                          CERTIFICATE OF COMPLIANCE
         I, Lisa Mullen, pursuant to Rule 9.4(i)(2)(D) of the Texas Rules of Appellate

Procedure, do hereby certify the word count of the applicable portions of this Petition for

Discretionary Review is 4,395 words and within the 4,500 word limit as required by the

rules.



                                                       Lisa Mullen
                                                       ________________________
                                                       /s/ Lisa Mullen
                                                       Attorney at Law
                                                       3149 Lackland Road, Suite 102
                                                       Fort Worth, Texas 76116
                                                       (817) 332-8900
                                                       State Bar No. 03254375
                                                       Lisa@MullenLawOffice.com

                                               12
13
14
                         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




                                       15
15
                    STATE VS. ADRIAN LEE WHITEMON                     90



 1   it's been improperly seized and not obtained by consent

 2   or probable cause.   So, for instance, if you believed a

 3   search warrant was --

 4                 MR. WHELCHEL:     Judge, I'm going to object.

 5   That's going to be a misstatement of the law.       That

 6   isn't the state of the law.     That's going to be a

 7   question of law for you to decide.       A jury's never going

 8   to receive an instruction on a search warrant.

 9                 THE COURT:    Sustained.

10                 MR. PITZER:     Do you think a person should

11   be guilty if they walk in a house unaware that there's

12   controlled substances?

13                 MR. WHELCHEL:     Objection.

14                 THE COURT:    I couldn't hear.    Can you

15   restate it?

16                 MR. PITZER:     I was asking Mr. Cassady if he

17   believed that a person should be guilty if he walked

18   into a house of someone else that contained controlled

19   substances, but I'll -- I'll rephrase that.

20                 THE COURT:    Your objection -- okay.       He's

21   withdrawn the question.

22                 MR. PITZER:     If a person walks into a

23   house, somebody else's house and there's controlled

24   substance in there, do you think that means they're

25   automatically guilty?



                        ANGIE TAYLOR ~ (817) 884-2341
             OFFICIAL COURT REPORTER ~ 432ND DISTRICT COURT
                       STATE VS. ADRIAN LEE WHITEMON                91



 1                   MR. WHELCHEL:     Objection, improper under

 2   Standefer.

 3                   THE COURT:    Sustained.       Rephrase.

 4                   MR. PITZER:     Do you think that the State

 5   would have to show more connection than just being in

 6   the same house with a controlled substance to find

 7   someone guilty?

 8                   MR. WHELCHEL:     Objection under Standefer.

 9                   THE COURT:    Sustained.       Rephrase.

10                   MR. PITZER:     Would you agree that the State

11   has to show for possession that a person intentionally

12   and knowingly had the substance or exercised control

13   over it?

14                   PROSPECTIVE JUROR:      Yes.

15                   MR. PITZER:     Okay.   The fact that there in

16   mere proximity of it wouldn't necessarily be enough to

17   convince you?

18                   MR. WHELCHEL:     Objection under Standefer.

19                   THE COURT:    Sustained.

20                   MR. PITZER:     Outside of what Mr. Allan's

21   already covered, that's pretty much all I wanted to

22   touch base with all of y'all.

23                   Is there anybody here that has any reason

24   that they think they couldn't sit as a fair and

25   impartial juror in this case?



                           ANGIE TAYLOR ~ (817) 884-2341
                OFFICIAL COURT REPORTER ~ 432ND DISTRICT COURT
