Opinion filed February 18, 2010




                                               In The


   Eleventh Court of Appeals
                                            ____________

                                      No. 11-08-00054-CR
                                          __________

                                  NAOMI ALVA, Appellant

                                                  V.

                                STATE OF TEXAS, Appellee


                             On Appeal from the 70th District Court

                                        Ector County, Texas

                                  Trial Court Cause No. A-33,361


                             MEMORANDUM OPINION

        In two issues of asserted error, appellant Naomi Alva seeks reversal of her conviction for
murder and the ensuing punishment of life confinement in the Institutional Division of the Texas
Department of Criminal Justice. In her first issue, she contends it was error for the State’s attorney
or the trial court to inject injurious and prejudicial matters before the jury panel during the voir dire
examination. In her second issue, she asserts the trial court reversibly erred in overruling her motion
for directed acquittal because the evidence was legally and factually insufficient to warrant a charge
to the jury on the offense of murder. Disagreeing that reversal is required, we affirm the judgment
of the trial court.
       The basis of appellant’s first issue is a comment by the State made during the State’s jury
voir dire examination. In the portion of that examination giving rise to this challenge, the State
commented: “It is not evidence, and it can’t be used as a consideration whenever the Defendant
doesn’t testify. You can’t consider that. . . . However, if a Defendant does give up that right, and
testifies, is anybody going to go, oh, well, they gave up that special right, they must be more
believable than anybody else?”
       Having received no reply to that question, the State continued: “You think, well, they gave
up that right, so, wow, they’re going to come in here and just automatically think that they’re telling
the truth because of that? Would you think that?” It was at that point that appellant’s counsel
objected on the basis that, by its statement, the State reversibly erred in making a strong implication
that appellant should testify.
       In the seminal case of Sells v. State, 121 S.W.3d 748 (Tex. Crim. App. 2003), the high court
instructs that, during the voir dire examination, it would leave to the trial court’s discretion the
propriety of a voir dire question and it would not disturb that trial court’s resolution of a particular
question absent an abuse of discretion. Id. at 755. It went on to define a proper voir dire question
as one that “seeks to discover a juror’s views on some issue applicable to the case.” Id.
       In contending that the question and dialogue were improper, appellant posits that the State
made a strong implication that appellant should testify and by doing so ventured into reversible error.
In maintaining that position, appellant primarily relies upon the court’s decision in Godfrey v. State,
859 S.W.2d 583 (Tex. App.—Houston [14th Dist.] 1993, no pet.). In that case, the court considered
statements made by the prosecutor during the State’s jury voir dire examination such as, if that
defendant “gets up here and testifies, he will say anything to save his own hide, he will get up there
and lie” and, “if he doesn’t testify, he must be hiding something.” Id. at 584. The Godfrey court
held that those statements required reversal because they were “a misstatement of the law,
particularly, a misstatement as to why a defendant may or may not choose to testify.” Id. at 585. The
Godfrey court also commented, and put emphasis, on the fact that the prosecutor, after an objection
was overruled, “persevered with the same line of argument.” Id. at 585. En route to its reversal, the
court noted that the statements made by the prosecutor were “extremely improper” and that the
“State should not be allowed to continue making such improper statements with impunity.” Id. at
586.

                                                   2
         Although admitting that the statement in question here “was not as grievous,” appellant
contends that the trial court here reversibly erred because the question led to “a misstatement of the
law through an implication that a Defendant who testifies receives the benefit of a doubt from the
jury.”
         In considering appellant’s argument, we note the general statement of the law that appellate
courts give wide latitude to trial court decisions made during the jury selection process and that the
decision of a trial court as to the propriety of a particular question will not be disturbed absent an
abuse of discretion. Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002). Responding to
appellant’s argument that reversal is required, the State argues that the question was proper because
it sought to discover whether the prospective jurors had any preexisting biases that, if appellant chose
to take the stand, would make her more believable. In comments made prior to asking the question,
the record reveals that the prosecutor had commented on the defendant’s right not to testify and that
the jurors could not consider the failure to take the stand in their deliberation.
         The Court of Criminal Appeals has instructed that a commitment question is one that
commits a prospective juror to resolve or refrain from resolving an issue a certain way after learning
a particular fact. Standefer v. State, 59 S.W.3d 177, 179 (Tex. Crim. App. 2001). If the State’s
question had been answered affirmatively, it would have given rise to a valid challenge for cause.
Under this record, we cannot conclude that the trial court abused its discretion.
         Additionally, even if we assume, arguendo, that the question was improper, we again find
the comments of the Godfrey court instructive. En route to its reversal of the trial court’s ruling, the
court commented that statements of counsel would “not constitute reversible error unless, in light
of the record as a whole, the statements are extreme or manifestly improper, violative of a mandatory
statute, or inject new facts harmful to the accused into the proceedings.” Godfrey, 859 S.W.2d at
585.
         Here, in asking the question, the prosecutor did not violate any mandatory statute, nor did he
inject new facts harmful to the accused. Moreover, he did not, as the prosecutor in the Godfrey case
had done, emphasize or repeat the alleged error. Indeed, after appellant’s trial objection, the
prosecutor abandoned that line of questioning. In sum, under this record, we cannot find that the trial
court abused its discretion in failing to grant a mistrial. Because it does not reveal reversible error,
appellant’s first issue is overruled.

                                                   3
       Reiterated, in her second issue, appellant contends that the trial court reversibly erred in
overruling her motion for directed acquittal because the evidence was both legally and factually
insufficient to warrant a charge to the jury on the offense of murder. That argument requires us to
briefly recount relevant evidence.
       The testimony revealed that on June 18, 2006, there was a party and that, during that party,
appellant and one Sarah Kiskaden got into an argument. Appellant then left the party in a van
accompanied by three others, namely Jesse McGinnis, Jonathan Paredes, and Ervin Terry. Paredes
averred that, while the quartet was in the van, McGinnis called an individual identified as Johnnie
Oranday. In the course of that conversation, McGinnis asked Oranday to get two guns for him: a
“9 and a bitch.” It was later identified that that was a reference to a 9 mm pistol and a shotgun.
Further, in the course of the conversation, McGinnis said he needed the guns because he was going
to “hit Mark and Adrian.” Paredes also averred that, during the course of that conversation,
appellant was in the van next to McGinnis and was “egging it on.” He also said that appellant told
another friend of hers who was still at the party, “[D]on’t worry. We are going to take care of them.”
       Sarah Kiskaden said that she was still at the party when appellant returned to the party in the
driver’s seat of the van with McGinnis in the passenger seat. As she approached the van, she saw
McGinnis get out of the van and shoot “the gun” in the air. She then ran off and later learned that
Adrian Garza, her boyfriend, had been shot.
       Sergio Pol testified that he was at the party that night. He saw a van approaching with its
“sliding door” open. He saw McGinnis get out of the van, fire once into the air and once toward
another man, and “unload[] the rest of the clip” on Garza. He then heard appellant tell McGinnis
to “hurry up and get in.” McGinnis was then pulled into the van, and with appellant driving, it
pulled away. Pol averred that the engine of the van was kept running during the entire time of the
shooting incident.
       Ervin Terry testified that he was in the van when it left the party, that it was driven by
appellant with McGinnis in the front seat, and that he heard McGinnis call someone for “a bitch and
a 9” because he was going to shoot someone in the stomach.
       When, as here, the propriety of a denial of a motion for directed verdict is challenged, the
reviewing court will consider it the same as an attack upon the sufficiency of the evidence to sustain
a conviction. McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997).

                                                  4
        In determining the legal sufficiency of evidence to sustain a conviction, the reviewing court
views all the evidence in a light most favorable to the prosecution to determine whether any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Garrett v. State, 851 S.W.2d 853, 857 (Tex. Crim. App. 1993) (citing Jackson v. Virginia, 443 U.S.
307, 319 (1979)). In conducting a factual sufficiency review, the reviewing court views all the
evidence in a neutral light and determines whether the evidence supporting the verdict is so weak
that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great
weight and preponderance of the conflicting evidence. Watson v. State, 204 S.W.3d 404, 414-15
(Tex. Crim. App. 2006). In conducting the factual sufficiency review, we are cautioned that we must
be appropriately deferential to the jury’s findings. Id. at 407; Johnson v. State, 23 S.W.3d 1 (Tex.
Crim. App. 2000).
        The evidence is legally sufficient. By the testimony of two witnesses, appellant was seated
next to McGinnis when he made the telephone call asking for two guns and said that he was going
to use the guns to make a “hit.” Paredes averred that appellant was “egging it on.” There was
testimony that appellant had driven the van to the place where the shooting took place and had the
door open with the engine running while McGinnis shot Garza. That evidence is sufficient to
support a jury belief that she had knowledge of the existence of the guns and the intent to use them.
The fact that she drove the van to the scene of the incident with that knowledge and waited with the
engine running during the shooting is sufficient to justify a jury belief that she had knowledge of the
existence of the guns, the intent with which they were to be used, and, by her conduct, she
encouraged and aided the commission of the crime.
        That evidence is also factually sufficient to justify the verdict of the jury. Again, the evidence
was sufficient to justify a jury belief that there was a plan to bring guns to the scene of the shooting,
that appellant knew of that plan, and that it was intended to use the guns to make a “hit.” It was also
sufficient to justify a jury belief that, by appellant’s conduct, she encouraged and participated in the
shooting and death of Garza.
        Suffice it to say that, after reviewing the evidence, we find it both legally and factually
sufficient to justify the conviction. Accordingly, appellant’s second issue must be, and is hereby,
overruled.



                                                    5
       There being no reversible error, the judgment of the trial court is affirmed.


                                                                                PER CURIAM


February 18, 2010
Do not publish. See TEX . R. APP . P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Boyd, S.J.1




       1
           John T. Boyd, Retired Chief Justice, Court of Appeals, 7th District of Texas at Amarillo, sitting by assignment.

                                                                6
