Texas Criminal Jury Selection

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Texas Criminal Jury Selection

Mark W. Bennett Bennett & Bennett 735 Oxford Street

Houston, Texas 77007 (713)224-1747 [email protected]

http://Blog.BennettAndBennett.com

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Table of Contents I. Introduction .............................................................................................................................................................. 1 II. The Purpose of Voir Dire ..................................................................................................................................... 1 III. Voir Dire Procedure ............................................................................................................................................. 1 A. Formation of jury panel ................................................................................................................................... 1 B. Composition of the venire ............................................................................................................................... 1 C. Qualifying the venire ......................................................................................................................................... 2 D. Presence of defendant ...................................................................................................................................... 3 E. Interim jury service ........................................................................................................................................... 3 F. Open courtroom .................................................................................................................................................. 4 G. Group or individual voir dire ......................................................................................................................... 4 H. Recording jury selection ................................................................................................................................. 4 I. The shuffle ............................................................................................................................................................. 4 J. Time limits ............................................................................................................................................................. 5 K. Alternate jurors .................................................................................................................................................. 5 L. Questioning by counsel .................................................................................................................................... 5 1. Scope of questioning .......................................................................................................................................................... 5 a. Diligent questioning is required ................................................................................................................................................... 5 b. Proper questions: intelligent, but not TOO intelligent ....................................................................................................... 5 c. Law applicable to the case .............................................................................................................................................................. 6 d. Permissible questions ...................................................................................................................................................................... 6 e. Impermissible questions ................................................................................................................................................................. 6 f. Fishing expedition ............................................................................................................................................................................... 6

2. Commitment questions ..................................................................................................................................................... 7 a. Proper commitment questions ..................................................................................................................................................... 7 b. Improper commitment questions ............................................................................................................................................... 8 c. State’s improper commitment questions ................................................................................................................................. 8

3. Denial of proper question ................................................................................................................................................ 9 4. Improper comments by the state .............................................................................................................................. 10 a. Preserving error ................................................................................................................................................................................ 11

M. Questions by the court ................................................................................................................................... 11 N. Excusing jurors sua sponte ........................................................................................................................... 11

a. Exemptions .......................................................................................................................................................................................... 11 O. Challenges for cause ........................................................................................................................................ 11 1. Challenge for cause: bias ............................................................................................................................................... 13 2. Vacillating jurors ............................................................................................................................................................... 13 3. Trick questions .................................................................................................................................................................. 13 4. Rehabilitation ..................................................................................................................................................................... 13 5. Court’s sua sponte strikes for cause ......................................................................................................................... 13 6. Denied challenge for cause: .......................................................................................................................................... 14 a. Error preservation ........................................................................................................................................................................... 14 b. Showing harm .................................................................................................................................................................................... 15

P. Peremptory challenges ................................................................................................................................... 15 1. Batson .................................................................................................................................................................................... 15 a. Batson procedure .............................................................................................................................................................................. 15 b. Some race-‐neutral reasons: ......................................................................................................................................................... 17

IV. Further reading .................................................................................................................................................... 17 V. Acknowledgements .............................................................................................................................................. 17


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I. INTRODUCTION In Texas criminal cases, voir dire is a matter of

constitutionally protected right and statutory law. The Sixth Amendment to the U.S. Constitution

protects the right to a jury trial in “criminal cases,” but the U.S. Supreme Court has limited “all criminal prosecutions” to those involving at least six months’ punishment. District of Columbia v. Clawans, 300 U.S. 617 (1937); Baldwin v. New York, 399 U.S. 66 (1970).

Texas courts have interpreted “all criminal prosecutions” in article I, Section 10 of the Texas Constitution and article 1.05 of the Texas Code of Criminal Procedure much more broadly to guarantee the right to a jury trial in all criminal prosecutions, regardless of punishment. “Since this constitutional provision applies to all criminal prosecutions, the defendant in a misdemeanor case has the same right of trial by jury as in felony cases.” Franklin v. State, 576 S.W.2d 621, 623 (Tex. Crim. App. 1978).

The right to a jury includes the right to voir dire “in order to intelligently and effectually exercise peremptory challenges and challenges for cause.” Ex parte McKay, 819 S.W.2d 478, 482 (Tex. Crim. App. 1990). The voir dire process helps protect a defendant’s right to trial by a competent and unimpaired jury. See Tanner v. United States, 483 U.S. 107, 127 (1987) (“Petitioners’ Sixth Amendment interests in an unimpaired jury, on the other hand, are protected by several aspects of the trial process. The suitability of an individual for the responsibility of jury service, of course, is examined during voir dire.”)

Chapter 35 of the Texas Code of Criminal Procedure governs the jury-selection process.

II. THE PURPOSE OF VOIR DIRE

There are three possible purposes for the voir dire examination of veniremen. The first purpose is to elicit information which would establish a basis for a challenge for cause.…The second purpose is said to facilitate the intelligent use of peremptory challenges.…And the third purpose—albeit not necessarily a legally legitimate one—is to indoctrinate the jurors on the party’s theory of the case and to establish rapport with the prospective jury members.

Sanchez v. State, 165 S.W.3d 707, 710–11 (Tex. Crim. App. 2005).

III. VOIR DIRE PROCEDURE

A. Formation of jury panel

In most jurisdictions in Texas, prospective jurors’ names are selected at random from the county’s jury wheel, which is reconstituted annually. The jury wheel

is composed of names derived from (1) the county’s voter registration list, and (2) a list of citizens who are qualified to serve and who hold a valid Texas driver’s license or a valid personal identification card issued by the Department of Public Safety. TEX. GOVT. CODE § 62.001(a). Those names are placed on cards, mixed in a wheel, and drawn at random for jury service. Tex. Govt. Code §§ 62.002-62.004. Deviation from this statutory scheme is not reversible error so long as the procedure used insures a random selection of jurors. Rivas v. Liberty Mut. Ins. Co., 480 S.W.2d 610 (Tex. 1972).

The lists of prospective jurors are then delivered to the clerks of the respective courts for safekeeping. TEX. GOV’T CODE § 62.007. At the appropriate time, the clerk sends a summons to each person on the list with an order to appear before the court on a certain date. TEX. GOVT. CODE §§ 62.012-62.013. The prospective juror may claim an exemption from service under section 62.106. A judge may not dismiss a potential juror for economic reasons unless all parties are present and approve. TEX. GOVT. CODE § 62.110(c).

If a party suspects that the officer summoning the jurors has summoned them in a willful attempt to ensure a conviction or an acquittal, the party may challenge the array of the panel. TEX. CODE CRIM. PROC. art. 35.07. The challenge must be made in writing (Motion to Quash the Venire) and, if made by the defendant, must be supported by an affidavit from the defendant or a credible person. Id. This challenge must be made before the jury is qualified and voir dire begins, or it is waived. Esquivel v. State, 595 S.W.2d 516, 523 (Tex. Crim. App. 1980), cert. denied, 449 U.S. 986 (1980). A timely challenge requires an evidentiary hearing before the trial judge. TEX. CODE CRIM. PROC. art. 35.07.

1. Electronic or Mechanical Selection

Section 62.011 of the Texas Government Code allows a county to adopt “a plan for the selection of names of persons for jury service with the aid of electronic or mechanical equipment instead of drawing the names from a [literal] jury wheel.” TEX. GOVT. CODE § 62.011.

The District Clerk is in charge of the selection process, which uses the same sources of names as Section 62.001 (that is, voter registration, driver’s licenses, and personal ID cards). Tex. Govt. Code § 62.011(2)-(3). B. Composition of the venire

The Sixth Amendment to the U.S. Constitution guarantees a defendant the right to trial “by an impartial jury of the State.” This right is incorporated into the Fourteenth Amendment’s Due Process Clause and is thus binding on the states. Duncan v. Louisiana,


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391 U.S. 145, 149 (1968). An impartial jury is one that is “drawn from a fair

cross-section of the community.” Taylor v. Louisiana, 419 U.S. 522, 527 (1975); see also Smith v. Texas, 311 U.S. 128, 130 (1940) (because juries are “instruments of public justice,” they must be “truly representative of the community”). A jury selection process that purposefully or systematically excludes otherwise qualified groups from service “is at war with our basic concepts of a democratic society and a representative government.” Smith, 311 U.S. at 130.

While a jury does not have to represent a fair cross-section of the community, see Holland v. Illinois, 493 U.S. 474, 480-84 (1990), the Sixth Amendment requires that the jury venire represent a fair cross-section of the community. See, e.g., Duren v. Missouri, 439 U.S. 357, 364-365 (1979) (disproportionate exclusion of women violated Sixth Amendment).

To show a violation of the fair-cross-section requirement, the defendant must first show the exclusion of a distinctive group in the community. Duren v. Missouri, 439 U.S. 357, 364 (1979). A “distinctive group” is one whose members share qualities that define them as a group (okay, tautological), whose members exhibit similar attitudes, beliefs, or experiences, and whose members share a community of interest. See U.S. v. Raszkiewicz, 169 F.3d 459, 463 (7th Cir. 1999).

Next, the defendant trying to show a violation of the fair-cross-section requirement must show “that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the group’s representation in the source from which juries are selected is not fair and reasonable in relation to the number of such persons in the community”—that is, that the group was not fairly represented in the venire. Duren v. Missouri, 439 U.S. 357, 357 (1979). To do so, “the defendant must demonstrate the percentage of the community made up of the group alleged to be underrepresented.” Duren v. Missouri, 439 U.S. 357, 364 (1979). “A gross discrepancy” shows unfair representation, see Duren v. Missouri, 439 U.S. 357, 364 (1979) (15% of venire, and 54% of community, was female). A smaller discrepancy may not demonstrate discrimination. See U.S. v. McAnderson, 914 F.2d 934, 941 (7th Cir. 1990) (discrepancy of less than ten percent between blacks in community and blacks on venire).

Finally, the defendant must show that the underrepresentation resulted from a systematic exclusion of the group in the jury selection process. This may be shown through the processes underlying the exclusion, see Machetti v. Linahan, 679 F.2d 236 (11th Cir. 1982) (underrepresentation of women resulted from a procedure that exempted women who filed notice), or through the statistics, see U.S. v.

Rogers, 73 F.3d 774, 775 (8th Cir. 1996) (blacks thirty percent less likely over five-year period to be selected for jury duty).

Once the defendant has made this prima facie showing of a violation of the fair-cross-section requirement, the state must show that the exclusion advances a significant government interest. See U.S. v. Rodriguez-Lozada, 558 F.3d 29, 38 (1st Cir. 2009) (exclusion of jurors not proficient in English served an overwhelming national interest).

Texas’s procedure of choosing venires from the pool of all registered voters and all people with Texas driver’s licenses or identification cards issued by the Department of Public Safety, TEX. GOVT. CODE § 62.001, if not tampered with, will likely not support a claim of systematic exclusion. See U.S. v. Miller, 116 F.3d 641, 659 (2nd Cir. 1997), Phillips v. State, 654 S.W.2d 846, 848 (Tex. App.—Dallas 1983, no pet.) (absent a showing of “purposeful and systematic exclusion of a cognizable group,” appellant did not show that previous jury selection procedure, which used only voter-registration lists and not lists of drivers, systematically and arbitrarily excluded a cognizable class.).

A defendant may also challenge the composition of a venire on equal protection grounds. To do so, he must show, in place of systematic exclusion, that the selection procedure is “susceptible of abuse or is not racially neutral.” Castaneda v. Partida, 430 U.S. 482 (1977). To rebut that prima facie showing the state must prove an absence of discriminatory intent. See, e.g., Smith v. Cunningham, 782 F.2d 292, 294 (1st Cir. 1986) (everyone responsible for selection of jurors denied discriminatory intent).

C. Qualifying the venire

Qualifications of jurors are set forth in Section 62.102 of the Texas Government Code. These qualifications include being age 18 or older, citizenship in the state and county in which he is to serve, being of sound mind and good moral character, not having been convicted of or under indictment for misdemeanor theft or any felony, and being able to read and write. TEX. GOVT. CODE § 62.102.


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Statutory Qualifications

1. At least 18 years of age. 2. Citizen of the county. 3. Qualified to vote. 4. Of sound mind and good moral character. 5. Able to read and write. 6. Has not served for six days during the preceding

three months (county court) or during the preceding six months (district court).

7. Not convicted of misdemeanor theft or a felony. 8. Not under indictment or other legal accusation

for misdemeanor theft or a felony. TEX. GOVT. CODE § 62.102

The court has discretion to eliminate the literacy requirement if the requisite number of literate jurors cannot be found in the county. TEX. GOVT. CODE § 62.103.

“A court may suspend the qualification for jury service that requires a person to have less than six days of service as a petit juror during the preceding three months in the county court or during the preceding six months in the district court if it appears to the court that the county’s sparse population makes its enforcement seriously inconvenient.” TEX. GOVT. CODE § 62.103(b).

“A deaf or hard of hearing person is disqualified to serve as a juror if, in the opinion of the court, his hearing loss renders him unfit to serve as a juror in that particular case.” TEX. GOVT. CODE § 62.1041(a). “A deaf or hard of hearing person serving as a juror shall be reasonably accommodated in accordance with the Americans with Disabilities Act.” TEX. GOVT. CODE § 62.1041(b).

Under Texas Code of Criminal Procedure article 35.16, a prospective juror is absolutely disqualified from service if he is convicted of a misdemeanor theft or any felony, if he is indicted or under legal accusation for misdemeanor theft or any felony, or if he is insane. These grounds for disqualification may not be waived. TEX. CODE CRIM. PROC. art. 35.16(b).

“Section 62.102 encompasses all types of trials and is a minimal threshold of juror qualifications. By contrast, Article 35.16 stated additional disqualifying factors to be considered in criminal cases.” Cantu v. State, 842 S.W.2d 667, 686 (Tex. Crim. App. 1992).

Government Code section 62.102 provides additional disqualifications, and no waiver. TEX. GOVT. CODE § 62.102. But “[t]hose qualifications found in the Government Code that are also contained in Art. 35.16 and are waivable under Art. 35.16”—age, citizenship, qualification to vote—“are waivable in a criminal case.” Mayo v. State, 4 S.W.3d 9, 12

(Tex. Crim. App. 1999) (holding that requirement that juror be citizen of county is waivable because it is subsumed under article 35.16(a)(1)’s “qualified voter in the county” requirement). Otherwise section 62.102’s disqualifications are not waivable.

If a defendant learns during trial that an absolutely disqualified juror is empaneled, he must raise an objection before the verdict is entered in order to preserve the issue. TEX. CODE CRIM. PROC. art. 44.46(1); Nelson v. State, 129 S.W.3d 108, 113 (Tex. Crim. App. 2004). If the defendant preserves error and is convicted, he may obtain a reversal on these grounds “without carrying a high burden to show harm.” Nelson v. State, 129 S.W.3d 108, 113 (Tex. Crim. App. 2004).

If the service of an absolutely disqualified juror is not discovered until after the verdict is entered, the defendant must make a showing of significant harm to prevail on appeal. TEX. CODE CRIM. PROC. art. 44.46(2). D. Presence of defendant

A defendant has a constitutional right, under both article I, Section 10 of the Texas Constitution and the Sixth Amendment to the U.S. Constitution, to be present at all phases of trial. Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892); Miller v. State, 692 S.W.2d 88 (Tex. Crim. App. 1985).

Texas Code of Criminal Procedure article 33.03 requires the defendant’s presence at trial unless he voluntarily absents himself. The defendant cannot waive this requirement before the jury is selected. TEX. CODE CRIM. PROC. art. 33.03.

The right to be present does not apply to “the taking of excuses and qualifications during the general jury assembly.” Chambers v. State, 903 S.W.2d 21, 31 (Tex. Crim. App. 1995).

There is no reason, however, to think that it does not apply to questioning of jurors by counsel at the bench.

Two Steps to Preserve Error— Defendant Absent for Voir Dire

1. On the record. 2. Object.

E. Interim jury service

“Interim jury service occurs when a juror serves on a separate jury during the period between selection as a juror in the defendant’s trial and the commencement of the defendant’s trial.” Linnell v. State, 935 S.W.2d 426, 427 (Tex. Crim. App. 1996).

“[I]f the trial judge intends to select more than


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one jury from a single venire, the veniremembers selected to serve as jurors must be excluded from the venire from which the other jurors will be selected.” Linnell v. State, 935 S.W.2d 426, 430 (Tex. Crim. App. 1996). F. Open courtroom

The accused has a right under the Sixth Amendment not only to a trial, but to a public trial. This right “may give way in certain cases to other rights or interests, such as the defendant’s right to a fair trial or the government’s interest in inhibiting disclosure of sensitive information.” Waller v. Georgia, 467 U.S. 39, 45 (1984), but “[t]rial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials.” Presley v. Georgia, 130 S. Ct. 721, 725 (2010) (reversing for defendant’s uncle’s exclusion from courtroom during voir dire).

“When the constitutionally tainted portion of trial encompasses the entire jury-selection process, it has been almost universally held that relief involves a new voir dire and a new jury; perforce, it necessitates a new trial.” Steadman v. State, 360 S.W.3d 499, 510 (Tex. Crim. App. 2012) (reversing and remanding for new trial where defendant’s family was excluded from courtroom during jury selection).

No Texas cases discuss the interplay of the right to a public trial with article 35.17 of the Texas Code of Criminal Procedure, which allows the voir dire of each venireperson apart from the others (see infra, section immediately following), but the accused’s right to a public trial is a factor that a trial court may want to consider before performing individual voir dire.

G. Group or individual voir dire

In most non-death-penalty cases, voir dire is conducted in the presence of the entire panel. TEX. CODE CRIM. PROC. art. 35.17(1).

In a death-penalty case, either the state or the defense may examine each juror apart from the entire panel. TEX. CODE CRIM. PROC. art. 35.17(2).

Article 35.17(1) implicitly allows individual voir dire—that is, voir dire of each venireperson apart from the others—at the court’s discretion. Courts in Harris County (State v. Blomberg, no appellate opinion) and Galveston County (State v. Durst, no appellate opinion) have used individual voir dire to ferret out prejudice in high-profile non-capital cases.

H. Recording jury selection

Defense counsel should always ask that voir dire be recorded. Not only is any jury-selection error waived if it does not appear on the record, Villarreal v. State, 617 S.W.2d 703, 703 (Tex. Crim. App. [Panel Op.] 1981), but the record of voir dire may be helpful

evidence in a Rule 44.2(b) harm analysis of error in other parts of trial. See Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000).

For the defense, there is “no sound tactical reason for not having a record made of the voir dire.” Brian Wice, Preservation of Error [see his chapter in this book].

I. The shuffle

Article 35.11 of the Texas Code of Criminal Procedure requires the jury panel to be randomly shuffled on either party’s demand. The jury shuffle “may be used as a strategic tool” and “is designed to ensure the compilation of a random list of jurors.” Ford v. State, 73 S.W.3d 923, 926 (Tex. Crim. App. 2002).

The right to a shuffle is absolute, though the granting of a request made by either party satisfies this right. Jones v. State, 833 S.W.2d 146, 149 (Tex. Crim. App. 1992).

A trial judge has discretion to shuffle the panel sua sponte, but a sua-sponte shuffling does not foreclose the right of a party to request a subsequent shuffle. Wilkerson v. State, 681 S.W.2d 29 (Tex. Crim. App. 1984). Otherwise only one shuffle is allowed. Chappell v. State, 850 S.W.2d 508, 511 (Tex. Crim. App. 1993).

A party has the right to see the panel members seated in the order in which they were called before deciding whether to request a shuffle. Batchelor v. State, 757 S.W.2d 455, 457 (Tex. App.—Dallas 1988, pet. ref’d). The court has discretion to allow or disallow the parties to review panel members’ biographical questionnaires or juror information cards in determining whether to exercise the right to a shuffle. Garza v. State, 7 S.W.3d 164 (Tex. Crim. App. 1999).

The demand for a shuffle must be made before voir dire begins for it to be timely. Gonzalez v. State, 296 S.W.3d 620 (Tex. App.—El Paso 2009, pet. ref’d). Generally, voir dire begins when the trial judge concludes any introductory remarks and recognizes the prosecutor to begin examination of the jury. Williams v. State, 719 S.W.2d 573 (Tex. Crim. App. 1986). In a capital case, however, voir dire begins when the trial judge begins his examination of the panel as required by Texas Code of Criminal Procedure article 35.17(2). Davis v. State, 782 S.W.2d 211, 215 (Tex. Crim. App. 1989).

As a creature of statute, however, the right to a shuffle does not rise to the level of a constitutional right. Ford v. State, 73 S.W.3d 923 (Tex. Crim. App. 2002). Thus, any error in connection with the shuffle is subject to Rule 44.2(b) harm analysis—specifically, “whether the jury shuffle statute’s purpose was thwarted by the error.” Id. at 926.


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J. Time limits The trial court may impose reasonable time limits

on voir dire. Cantu v. State, 842 S.W.2d 667, 687 (Tex. Crim. App. 1992). Time limits are reviewed under an abuse-of-discretion standard. Boyd v. State, 811 S.W.2d 105, 115-16 (Tex. Crim. App. 1991).

Seven Steps to Preserve Error— Time Limits

1. On the record. 2. Timely and specific objection to time limit. 3. Request additional time. 4. Don’t try to prolong the voir dire. 5. Make record of questions you would ask. 6. Questions must be:

a. Relevant; b. Not repetitious; and c. Not vague or open-ended.

7. Show which jurors that you were unable to question served on the jury.

K. Alternate jurors

The trial court can seat up to four alternate jurors; these alternates replace jurors who “become or are found to be unable or disqualified to perform their duties or are found by the court on agreement of the parties to have good cause for not performing their duties.” TEX. CODE CRIM. PROC. art. 33.011. L. Questioning by counsel

The U.S. Constitution does not provide a right for the lawyers (as opposed to the court) to conduct voir dire—in fact, using a written questionnaire in place of oral questioning has been held not to abuse the court’s discretion, U.S. v. Quinones, 511 F.3d 289, 301-02 (2nd Cir. 2007)—but the right to be heard under article I, Section 10 of the Texas Constitution includes “the right to pose proper questions during voir dire examination” through counsel. Jones v. State, 223 S.W.3d 379, 381 (Tex. Crim. App. 2007).

Texas Code of Criminal Procedure article 35.17 also permits the lawyers to conduct the voir dire.

1. Scope of questioning

“The permissible areas of questioning the panel in order to exercise peremptory challenges are broad and cannot be unnecessarily limited.” Mathis v. State, 576 S.W.2d 835, 836–837 (Tex. Crim. App. 1979). “A question is proper if it seeks to discover a juror’s views on an issue applicable to the case.” Smith v. State, 703 S.W.2d 641, 643 (Tex. Crim. App. 1985).

“The trial court should give a defendant great latitude in questioning the jury panel during voir dire.” Trevino v. State, 572 S.W.2d 336 (Tex. Crim. App. [Panel Op.] 1978). The trial court can, however, control the scope of voir dire by exercising its sound

discretion to limit improper questioning. Smith v. State, 513 S.W.2d 823 (Tex. Crim. App. 1974). See also Abron v. State, 523 S.W.2d 405, 408 (Tex. Crim. App. 1975) (trial court can restrict repetitious or vexatious questions, restrict questions asked in improper form, restrict questions directed at personal habits of jurors).

Like time limits, “refusals to allow lines of questioning during voir dire are reviewed under an abuse of discretion standard.” In re Commitment of Hill, 334 S.W.3d 226, 229 (Tex. 2011).

That discretion inquiry turns on the propriety of the question: “a court abuses its discretion when its denial of the right to ask a proper question prevents determination of whether grounds exist to challenge for cause or denies intelligent use of peremptory challenges.” Standefer v. State, 59 S.W.3d 177, 185 (Tex. Crim. App. 2001).

Five Reasons the Court May Limit the Defendant’s Voir Dire

1. Question commits a venireman to a specific set

of facts. 2. Questions are repetitious. 3. Juror has already stated his views clearly and

unequivocally. 4. Question is so vague or broad in nature as to

constitute a global fishing expedition. 5. Question is not in proper form.

Dinkins v. State, 894 S.W.2d 330, 345 (Tex. Crim. App. 1995) (#s 1-3,5); Sells v. State, 121 S.W.3d 748, 756 (Tex. Crim. App.) (#4). a. Diligent questioning is required

Error occurs “[w]hen a prejudiced or biased juror is selected without fault or lack of diligence on the part of defense counsel, such counsel acting in good faith on the juror’s responses and having no knowledge of their inaccuracy.” Brandon v. State, 599 S.W.2d 567, 577 (Tex. Crim. App. 1979).

Defense counsel must diligently “ask questions calculated to bring out that information which might be said to indicate a juror’s inability to be impartial, truthful, and the like.… ‘[D]iligent counsel’ will not rely on written questionnaires to supply any information that counsel deems material.” Gonzales v. State, 3 S.W.3d 915, 917 (Tex. Crim. App. 1999). b. Proper questions: intelligent, but not TOO intelligent

“The more intelligent or effective the question, the more likely it is that the question will commit the venire member to decide the case, or to refrain from


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deciding the case, on a basis not required by law.” Barajas v. State, 93 S.W.3d 36, 39 (Tex. Crim. App. 2002).

c. Law applicable to the case

The trial court can refuse to allow questions about areas of the law that will not be raised in the trial, but it is error to disallow questions about the law applicable to the case. See Loredo v. State, 59 S.W.3d 289, 293–94 (Tex. App.–Corpus Christi-Corpus Christi 2001) (reversing defendant’s conviction because he was prevented from asking relevant questions on voir dire concerning parole); McGee v. State, 35 S.W.3d 294, 298 (Tex.App.—Texarkana 2001, no pet.) (reversing defendant's conviction because he was prevented from asking relevant questions on voir dire concerning permissible use of prior convictions); Gonzales v. State, 2 S.W.3d 600, 603 (Tex.App.—Texarkana 1999, no pet.) (holding error to be harmful after the trial court prohibited questioning the panel concerning the theory of necessity). d. Permissible questions

Proper questions “seek to discover a juror’s views on an issue applicable to the case,” and are not commitment questions, nor “so vague or broad in nature as to constitute a global fishing expedition.” Sells v. State, 121 S.W.3d 748, 755–56 (Tex. Crim. App. 2003).

Hypothetical fact situations may be employed during voir dire to explain the application of the law, but not to determine how a venireperson would respond to particular circumstances. Cuevas v. State, 742 S.W.2d 331, 336 n. 6 (Tex. Crim. App.1987).

A trial court abuses its discretion if it refuses to allow the defendant to ask venirepersons about what they think reasonable doubt means. Lane v. State, 828 S.W.2d 764, 766 (Tex. Crim. App. 1992).

Some other permissible questions: • “With regard to my question of incarceration,

Mr. Robertson, do you consider yourself a believer in the theory of deterren[ce], punishment, or rehabilitation?” Powell v. State, 631 S.W.2d 169, 170 (Tex. Crim. App. [Panel Op.] 1982).

• “Have you read something in the paper that discusses the pros and cons or just anything regarding the defense of insanity?” Smith v. State, 703 S.W.2d 641 (Tex. Crim. App. 1985).

• “Have you ever known somebody that was harmed by extra-marital affairs?” Shipley v. State, 790 S.W.2d 604, 606 (Tex. Crim. App. 1990) (“relevant to an intelligent use of peremptory challenges”).

• Prior jury service is an appropriate area for the parties to question the venire. De La Rosa v.

State, 414 S.W.2d 668, 670 (Tex. Crim. App. 1967).

e. Impermissible questions Some questions held impermissible, or at least

within the court’s discretion to disallow: • No abuse of discretion where trial court refused

voir dire questioning on definitions of terms “deliberately,” “probability,” and “criminal acts of violence” in a capital case. Milton v. State, 599 S.W.2d 824, 826 (Tex. Crim. App. 1980).

• “Appellant's attempt to question venire members on their willingness to consider his 'background' as a particular mitigating factor in sentencing him for aggravated robbery was not a proper question.” Ledbetter v. State, No. 01-07-00421-CR, 2008 WL 2756684, at *2 (Tex. App.—Houston July 17, 2008).

• Counsel “would like to have gone into that holding juveniles to higher or lower standards and prisons for juveniles.” In re V.M.S, No. 01–03–00072–CV, 2004 WL 2475111, at *4 (Tex. App.—Houston Nov. 4, 2004) (counsel didn’t make a clear record of the question she would have asked).

• “Could you be fair and impartial in a case where the victim is an 8-year-old child?” is an improper question. Daniel v. State, No. 01-03-00469-CR, 2004 WL 1485470, at *1 (Tex. App.—Houston [1st Dist.] July 1, 2004, no pet.).

• “The trial court did not abuse its discretion in refusing to allow appellant to ask questions based on facts peculiar to the case on trial” Coleman v. State, 881 S.W.2d 344, 351 (Tex. Crim. App. 1994). It is not error for the trial court to refuse to allow questions based on facts “peculiar to the case at trial.” White v. State, 629 S.W.2d 701, 706 (Tex.Crim.App.1981).

f. Fishing expedition A “fishing expedition” question “does not seek

particular information from a particular panel member; rather, it presents a general topic for discussion.” Smith v. State, 703 S.W.2d 641, 645 (Tex. Crim. App. 1985) (holding that “the trial judge correctly restricted appellant from asking every juror for his or her “thoughts” on the insanity defense because the question, as phrased, was improperly broad and duplicitous”).

In Boyd v. State counsel inquired, “What I’m basically asking you is what you as layman think is a case that is proper for the death penalty to be imposed?” This question was unrelated to the statutory sentencing scheme, was improperly broad, and so was an improper fishing expedition. Boyd v. State, 811 S.W.2d 105, 119 (Tex. Crim. App. 1991).

Another example of a “fishing expedition”


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question: “[W]hat would be a mitigating circumstance, in your mind?” Dickson v. State, No. 74533, 2001 WL 34736485, at *5 (Tex. Crim. App. Oct. 13, 2004). 2. Commitment questions

Commitment questions commit 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).

Commitment questions often require a “yes” or “no” answer. Davis v. State, 313 S.W.3d 317, 346 (Tex. Crim. App. 2010). Often they do not, though, and often yes-or-no questions are not commitment questions. For example, “Have you known anyone who has been abused as a child?”

“When the law requires a certain type of commitment from jurors, the attorneys may ask the prospective jurors whether they can follow the law in that regard.” Standefer v. State, 59 S.W.3d 177, 181 (Tex. Crim. App. 2001).

a. Proper commitment questions

For a commitment question to be proper, one of the possible answers to that question must give rise to a challenge for cause. “[W]here the law does not require the commitment, a commitment question is invariably improper.” Standefer v. State, 59 S.W.3d 177, 181 (Tex. Crim. App. 2001). Even if the question meets this challenge-for-cause requirement, “the question may nevertheless be improper if it includes facts in addition to those necessary to establish a challenge for cause.” Id. To be proper “a commitment question must contain only those facts necessary to test whether a prospective juror is challengeable for cause.” Id. (Emphasis in original).

So a proper commitment question is one that would allow a valid challenge for cause if answered a particular way, and that contains only those facts necessary to test whether a prospective juror is challengeable for cause.

For example, “can you consider probation in a first-degree felony theft case” is a proper commitment question (because, assuming that the accused is probation eligible, jurors must be able to consider probation); “can you consider probation in a first-degree felony theft case involving the theft of more than $400,000” is not a proper commitment question (because the amount of the theft is a fact beyond those necessary to test whether prospective jurors are challengeable for cause).

Some other examples: • Whether venire members would be biased

because the defendant was a black man and the victim a white woman. Abron v. State, 523 S.W.2d 405, 407 (Tex. Crim. App. 1975). In Barajas v. State the Court of Criminal Appeals

distinguished that question from the improper question in Abron of “whether the venire members could be impartial in an indecency case involving a victim who was eight to ten years old” because the nun question “was precisely tailored to get to the heart of an issue relevant to the case.” Barajas v. State, 93 S.W.3d 36, 40 (Tex. Crim. App. 2002). The concurrence added that “the prohibition of discrimination on the basis of race that is embodied in the Due Process Clause is part of 'the law applicable to the case upon which the defense is entitled to rely,'“ Barajas v. State, 93 S.W.3d 36, 42 (Tex. Crim. App. 2002) (Womack, J., concurring).

• “Do you believe a police officer, any police officer, just because he is a police officer would not perjure himself from the witness stand?” Hernandez v. State, 563 S.W.2d 947, 950 (Tex. Crim. App. 1978).

• “Would you presume someone guilty if he or she refused to make a statement to the police?” Standefer v. State, 59 S.W.3d 177, 183 n.28 (Tex. Crim. App. 2001).

(1) Full range of punishment “Bias against the range of punishment is a proper

area of inquiry for both challenges for cause and peremptory challenges.” Mathis v. State, 576 S.W.2d 835, 836–37 (Tex. Crim. App. 1979).

Asking a juror if he is able to “consider” the full range of punishment is a proper commitment question. Davis v. State, 313 S.W.3d 317, 346 (Tex. Crim. App. 2010). Asking a juror if he can consider the minimum sentence given specific evidentiary facts is not. Cardenas v. State, 325 S.W.3d 179, 184 (Tex. Crim. App. 2010). A defendant is entitled to jurors who can “consider” (not necessarily “give”) the entire range of punishment. Cardenas v. State, 325 S.W.3d 179, 184 (Tex. Crim. App. 2010). “In other words, a juror must be able to conceive of both a situation in which the maximum penalty would be appropriate, and a situation in which the minimum penalty would be appropriate, for a particular offense as charged in the indictment.” McCoy v. State, 996 S.W.2d 896, 898 (Tex. App.–Houston [14th Dist.] 1999, pet. ref’d).

A prospective juror must be able to consider the full range of punishment for the offense generally, not for some specific manner or means of committing the offense. Johnson v. State, 982 S.W.2d 403, 405 (Tex. Crim. App. 1998). A hypothetical question seeking to commit the jurors to a particular set of facts is an improper question. Atkins v. State, 951 S.W.2d 787, 789 (Tex. Crim. App.1997).

Once a prospective juror admits an inability to consider the full range of punishment, including community supervision, a sufficient foundation has been laid to support a challenge for cause. Cumbo v.


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State, 760 S.W.2d 251, 255–56 (Tex. Crim. App. 1988).

b. Improper commitment questions

An improper commitment question either a) attempts to commit jurors to do (or not do) something that they are not required to do (or not do), or b) contains more facts than necessary to test whether a prospective juror is challengeable for cause.

For example: • “Can you be fair and impartial if the victim in

this case is a nun?” See Barajas v. State, 93 S.W.3d 36, 40 (Tex. Crim. App. 2002) (overruling Nunfio v. State, 808 S.W.2d 482 (Tex. Crim. App. 1991)) (too many facts).

• Whether jurors could be impartial in an indecency case involving a victim who was eight to ten years old. Barajas v. State, 93 S.W.3d 36 (Tex. Crim. App. 2002) (too many facts).

• “Whether a juror considers a particular type of evidence to be mitigating” Standefer v. State, 59 S.W.3d 177, 181 (Tex. Crim. App. 2001) (jurors do not have to consider a particular type of evidence to be mitigating).

• “If the evidence, in a hypothetical case, showed that a person was arrested and they had a crack pipe in their pocket, and they had a residue amount in it, and it could be measured, and it could be seen, is there anyone who could not convict a person, based on that-” Atkins v. State, 951 S.W.2d 787, 789 (Tex. Crim. App. 1997) (too many facts—“could you find someone guilty if I proved to you, beyond a reasonable doubt, that he had knowingly possessed a trace amount of cocaine” would have been a proper commitment question).

• “Would you presume someone guilty if he or she refused a breath test on their refusal alone?” Standefer v. State, 59 S.W.3d 177, 183 (Tex. Crim. App. 2001) (jurors may convict based on refusal alone).

• “[W]hich jurors would require an additional fact such as mercy killing before they could consider assessing probation?” Richardson v. State, 83 S.W.3d 332, 360 (Tex. App.–Corpus Christi 2002).

• “[W]hether the prospective jurors would be able to consider the minimum range of punishment where a gun was used in the commission of a crime.” Cuero v. State, No. 01-93-00989-CR, 1994 WL 620897, at *7 (Tex. App.—Houston [1st Dist.] Nov. 10, 1994). “Absent statutory direction”—Code of Criminal

Procedure Article 38.14, for example, or 38.141, or 38.15, each of which requires a certain amount of evidence in a certain type of case—“a challenge for

cause based upon the sufficiency implications of an item of evidence would be inappropriate.” Standefer v. State, 59 S.W.3d 177, 183 (Tex. Crim. App. 2001).

Three-Part Inquiry: Commitment Question

1. Does the question attempt to commit jurors to

doing or not doing something? (If “yes,” it is a commitment question.)

2. Does the law require the jurors to do what the question would commit them to? (If “no,” not a proper commitment question.)

3. Does the question contain more facts than necessary to test whether a prospective juror is challengeable for cause? (If “yes,” not a proper commitment question.)

c. State’s improper commitment questions

The Court of Criminal Appeals has held that the harm test to be used, when the State has been allowed to ask improper commitment questions of the entire panel, is whether the defendant was “tried by a juror that [sic] had prejudged him or some aspect of his case because the State had improperly committed one or more veniremen to a verdict or course of action before hearing any evidence.” Sanchez v. State, 165 S.W.3d 707, 714 (Tex. Crim. App. 2005). The court listed seven non-exclusive factors for courts of appeals to consider in determining whether there was harm:

1) Whether the questions were unambiguously improper and attempted to commit one or more veniremen to a specific verdict or course of action; 2) How many, if any, veniremen agreed to commit themselves to a specific verdict or course of action if the State produced certain evidence; 3) Whether the veniremen who agreed to commit themselves actually served on the jury; 4) Whether the defendant used peremptory challenges to eliminate any or all of those veniremen who had committed themselves; 5) Whether the defendant exhausted all of his peremptory challenges upon those veniremen and requested additional peremptory challenges to compensate for their use on improperly committed veniremen; 6) Whether the defendant timely asserted that a named objectionable venireman actually served on the jury because he had to


9

waste strikes on the improperly committed jurors; and 7) Whether there is a reasonable likelihood that the jury’s verdict or course of action in reaching a verdict or sentence was substantially affected by the State’s improper commitment questioning during voir dire.

Sanchez v. State, 165 S.W.3d 707, 714 (Tex. Crim. App 2005).

In Sanchez, the Anson factors (that the defendant exhausted his peremptory challenges, that he asked for more, that the request was denied, and that he had to accept an objectionable person as a result, see infra, section 3.O.6.b, Showing Harm) are only one part of the harm analysis; it is important to make an Anson record even when the Anson factors are not dispositive.

(1) Inability to judge The state often looks for those jurors who,

because of their religious beliefs, are unable to judge other people. Judges treat an affirmative answer to this question as grounds for a challenge for cause.

The Texas Constitution provides:

RELIGIOUS TESTS. No religious test shall ever be required as a qualification to any office, or public trust, in this State; nor shall any one be excluded from holding office on account of his religious sentiments, provided he acknowledge the existence of a Supreme Being.

TEX. CONST. art. I Sec. 4. Article VI Section 3 has a similar injunction

against religious tests for public offices, without the requirement that officers acknowledge the existence .

“Does your religion prevent your judging other people?” is a religious test; “juror” is an office or public trust.

The Supreme Court has held (in the capital-murder context) that a potential juror can be barred from service if he holds religious or personal views that “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Wainwright v. Witt, 469 U.S. 412, 418 (1985).

A juror’s oath does not require him to “judge” the defendant, but only to render a true verdict according to the law and the evidence. TEX. CODE CRIM. PROC. art. 35.22 (setting out juror’s oath). It cannot be assumed that a person whose religion advises him to judge not, lest he be judged cannot perform the duties of a juror in accordance with his instructions and his oath.

Article I section 4 and article VI section 3 do not protect the rights of the accused; they protect the rights of the potential juror. But the only people who can protect those rights when they are at risk in a criminal trial are the court, the accused, and the state. See Powers v. Ohio, 499 U.S. 400 (1991) (defendant can vindicate potential jurors’ right to equal protection in jury selection) and Georgia v. McCollum, 505 U.S. 42 (1992) (state can vindicate potential jurors’ right to equal protection in jury selection).

The issue of whether excluding people who have religious preferences against judging other people violates Texas’s Constitutional rule against religious tests has not been litigated.

Six Potential Objections to the “Can You Judge?” Question

1. Texas Constitution article I Section 4. 2. U.S. Constitution article VI Section 3. 3. Texas Constitution article I Section 6. 4. U.S. Constitution Amendment I. 5. Improper voir dire. 6. Improper commitment question.

3. Denial of proper question

Refusing to allow the defendant to ask a permissible question is error. See Loredo v. State, 59 S.W.3d 289, 293–94 (Tex. App.–Corpus Christi-Corpus Christi 2001) (reversing defendant’s conviction because he was prevented from asking relevant questions on voir dire concerning parole); McGee v. State, 35 S.W.3d 294, 298 (Tex.App.—Texarkana 2001, no pet.) (reversing defendant's conviction because he was prevented from asking relevant questions on voir dire concerning prior convictions); Franklin v. State, 23 S.W.3d 81, 83 (Tex.App.—Texarkana 2000, no pet.) (finding error harmful when the trial court refused the defense counsel to further question a juror concerning the relationship between juror and victim); Gonzales v. State, 2 S.W.3d 600, 603 (Tex.App.—Texarkana 1999, no pet.) (holding error to be harmful after the trial court prohibited questioning the panel concerning the theory of necessity).

In Anson v. State the Court of Criminal Appeals held that an appellant has to go through the four-step process applicable in other voir dire areas (showing a) that he exhausted his peremptory challenges, b) that he asked for more, c) that the request was denied, and d) that he had to accept an objectionable person as a result) to show harm arising from the trial court’s refusal to let the defense ask proper questions. Anson v. State, 959 S.W.2d 203, 204 (Tex. Crim. App. 1997) (see infra, section 3.O.6.b, Showing Harm).


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In Rich v. State, however, the court held:

Rich was prevented from asking a valid question to the entire venire. Exhausting his peremptory challenges and requesting additional peremptory challenges would not have remedied the trial judge’s error since the error extended to the entire venire.

Rich v. State, 160 S.W.3d 575, 577 (Tex. Crim. App. 2005).

The Rich court then applied Texas Rule of Appellate Procedure 44.2(b)’s harm analysis to the trial court’s improper exclusion of a proper voir dire question. This was contrary to a string of Court of Criminal Appeals opinions holding that the exclusion of a proper question was constitutional error. Rich v. State, 160 S.W.3d 575, 577 (Tex. Crim. App. 2005).

In 2007, the Court of Criminal Appeals clarified: “Although Rich analyzed error in refusing to permit the asking of a proper question as non-constitutional, it did so because the defendant did not contest the court of appeals’s characterization of the error as such. Thus, the court of appeals in this case erred in relying upon Rich for the proposition that the error was of the non-constitutional variety.” Jones v. State, 223 S.W.3d 379, 382 (Tex. Crim. App. 2007).

According to Jones, if the defense is denied the opportunity to ask a proper question, it is constitutional error, subject to Rule 44.2(a) error analysis.

While Jones is the leading published case, in an unpublished 2010 case the Court of Criminal Appeals cited Anson for its harm analysis without discussing either Rich or Jones: “The erroneous prohibition of proper questioning of individual prospective jurors is subject to the harm analysis traditionally applied to the erroneous denial of a defendant’s challenge for cause.” Storey v. State, No. AP–76018, 2010 WL 3901416, at *13 n.10 (Tex. Crim. App. Oct. 6, 2010) (unpublished).

It is an open question whether the defendant who has been denied the opportunity to ask a proper question must make the Anson harm showings: a) that he exhausted his peremptory challenges, b) that he asked for more, c) that the request was denied, and d) that he had to accept an objectionable person as a result. Rich makes more sense than Storey; exhausting peremptories does not help when you have not been allowed to ask questions intended to help you decide how to exercise your peremptories. The First Court of Appeals wrote in Rios v. State, “The only way we can see to determine harm would be to have a motion for a new trial hearing and ask the jurors the forbidden voir dire questions.” Rios v. State, 4 S.W.3d 400, 404 (Tex. App.—Houston [1st Dist.] 1999, pet. dism’d). But, for the practitioner, it is perhaps better to be safe than

sorry. One thing that is apparent is that counsel must

make a clear record of the question he would have asked in order to preserve error. Error is not preserved for review as to a proposed question if the question is not presented to the trial court for a ruling. See Caldwell v. State, 818 S.W.2d 790, 794 (Tex. Crim. App.1991). If the trial court limits a question due to its form, trial counsel must determine the basis of the limitation and attempt to fashion a query which complies with the perceived inadequacy. See Wright v. State, 28 S.W.3d 526, 534 (Tex. Crim. App. 2000). Counsel’s statement to the court that he “would like to have gone into that holding juveniles to higher or lower standards and prisons for juveniles” did not make clear what the intended question was. In re V.M.S, No. 01–03–00072–CV, 2004 WL 2475111, at *4 (Tex. App.—Houston Nov. 4, 2004).

Seven Steps to Preserve Error—

Denial of Question

1. On the record. 2. Ask proper question. 3. Invoke Texas Constitution article I, section 10:

right to be heard. 4. Point out that error prevents you from

intelligently exercising peremptory challenges. 5. Exhaust peremptory challenges.* 6. Request more strikes until request is denied.* 7. Identify an objectionable person seated on the

jury on whom you would have exercised a peremptory challenge.*

*It is debatable whether this is necessary. 4. Improper comments by the state

“A mistrial will not be granted during voir dire unless the statement complained of injects injurious and prejudicial matters before the panel which are reasonably calculated to prevent a fair trial before an impartial jury.” Herring v. State, 758 S.W.2d 849, 853 (Tex. App.–Corpus Christi 1988, pet. ref’d) (state discussed an exhibit, the subject of a motion in limine, during voir dire).

The state’s statement in voir dire that “the law says we are not going to put him in that predicament” of lying or hiding something was improper, and allowing it was error. Godfrey v. State, 859 S.W.2d 583, 585 (Tex. App.–Houston [14th Dist.] 1993, no pet.).

The state’s statement in voir dire implying that the state did not need to prove intent was improper, and allowing it was error. Dues v. State, 634 S.W.2d 304 (Tex. Crim. App. [Panel Op.] 1982).


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a. Preserving error

When the state has made misstatements of law, the defense preserves error by pursuing the objection to an adverse ruling—overruled objection, denied motion to disregard, Hackbarth v. State, 617 S.W.2d 944 (Tex. Crim. App. [Panel Op.] 1981), or denied motion to strike the panel, see Hogan v. State, 496 S.W.2d 594, 598 (Tex. Crim. App. 1973) (“There was no request to have the jurors to disregard the complained of answer and no motion was made to discharge the members of the panel who heard the remark.…No error is shown.”).

(Note that rather than a motion for mistrial, the technically correct error-preservation step following a granted instruction to disregard in voir dire is a motion to quash the panel or strike those jurors who heard the improper statements.)

It may also be necessary to exhaust peremptory challenges against jurors who heard the comment. See Hammett v. State, 578 S.W.2d 699, 705 (Tex. Crim. App. 1979). (“The appellant had sufficient remaining peremptory challenges to have removed each juror he now complains of who sat on the panel. No error is shown.”)

Five Steps to Preserve Error: Improper Comments to Panel

1) On the record. 2) Make a timely and specific objection. 3) Instruction to disregard. 4) Move to strike jurors who heard the comments. 5) Exhaust peremptory challenges against jurors

who heard the comments.

M. Questions by the court

“Only when a trial court’s comments during voir dire are reasonably calculated to benefit the State or prejudice the defendant’s rights will reversible error occur.” Gardner v. State, 733 S.W.2d 195, 210 (Tex. Crim. App. 1987).

But “comments of the trial judge, which tainted appellant’s presumption of innocence in front of the venire, were fundamental error of constitutional dimension and required no objection” Blue v. State, 41 S.W.3d 129, 132 (Tex. Crim. App.2000).

N. Excusing jurors sua sponte

The trial court has broad discretion under Texas Code of Criminal Procedure article 35.03 to excuse prospective jurors for good reason. “The power to grant an excusal from jury service (pursuant to Article 35.03) inheres to the trial judge from the first assemblage of the array until the juror is, at last,

seated.” Butler v. State, 830 S.W.2d 125, 131 (Tex. Crim. App. 1992).

An excuse cannot, however, be given for “an economic reason” without both parties’ consent. TEX. GOVT. CODE § 62.110(c) (applied to criminal case in Jasper v. State, 61 S.W.3d 413, 424 (Tex. Crim. App. 2001)).

a. Exemptions

Section 62.106 provides nine exemptions from jury duty.

These exemptions belong to the potential jurors;

they can use them to avoid jury duty. The defendant does not have a right to exempt a potential juror. Moore v. State, 999 S.W.2d 385, 399 (Tex. Crim. App. 1999).

O. Challenges for cause

Article 35.16 of the Texas Code of Criminal Procedure sets out eleven grounds for challenges for cause available to either side.

A “challenge for cause is forfeited if not made.” Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007).

The test for a challenge for cause is whether the venireperson’s “bias or prejudice would substantially impair [his] ability to carry out his oath and instructions in accordance with the law.” Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim. App. 2002).

Nine Exemptions from Jury Duty

1. Over 70 years of age. 2. Has legal custody of a young child and service

would require leaving the child without adequate supervision.

3. Student of a public or private secondary school; 4. Enrolled and in actual attendance at an institution

of higher education. 5. Officer or an employee of the legislative branch

of state government. 6. In county >200k without a plan for electronic or

mechanical selection under Government Code section 62.011, and has served in the last 24 months.

7. Primary caretaker of invalid. 8. In county >250k, has served in last three years,

unless wheel reconstituted since last service. 9. Active-duty military deployed out-of-county. Tex. Govt. Code §62.106


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Eleven Grounds for Challenge for Cause

1. Juror is not qualified to vote. 2. Juror has been convicted of theft or a felony. 3. Juror is under legal accusation for theft or a

felony. 4. Juror is insane. 5. Juror has defect or disease rendering her unfit for

jury service in the case. 6. Juror is a witness in the case. 7. Juror served on grand jury that found indictment. 8. Juror served as a juror on a trial of the same case. 9. Juror has a bias or prejudice in favor of or

against the defendant. 10. Juror has prejudged the case. 11. Juror cannot read or write. TEX. CODE CRIM. PROC. art. 35.16(a)

Three of those grounds—that the juror has been

convicted of a felony or theft; that the juror is under legal accusation for a felony or theft; and that the juror is insane—are not waivable. TEX. CODE CRIM. PROC. art. 35.16(a).

Aside from those, there are three statutory grounds for challenges for cause available only to the state, and two available only to the defense:

Three Grounds for Challenge for Cause Available Only to the State

12. In a death-penalty case, that the juror has “conscientious scruples in regard to the infliction of the punishment of death for crime.”

13. That the juror is related within the third degree of consanguinity or affinity to the defendant.

14. That the juror has a bias against any part of the law upon which the state is entitled to rely.

TEX. CODE CRIM. PROC. art. 35.16(b).

Two Grounds for Challenge for Cause

Available Only to the Defense

12. That the juror is related within the third degree of consanguinity or affinity to a person injured by the offense or to any prosecutor in the case.

13. That the juror has a bias against any part of the law upon which the defense is entitled to rely.

TEX. CODE CRIM. PROC. art. 35.16(c).

Article 35.16 “is a complete list of challenges for

cause” Butler v. State, 830 S.W.2d 125, 130 (Tex. Crim. App. 1992).

The statutory requirement that jurors be able to read and write is not satisfied by a juror’s ability “to write his name and nothing more.” Hernandez v. State, 506 S.W.2d 884, 887 (Tex. Crim. App. 1974). Rather, the prospective juror should be able to express his ideas in words on paper. Id. at 887.

Where a juror has a bias or prejudice against some part of the law applicable to the case, the test is whether the bias or prejudice would prevent or substantially impair the prospective juror’s ability to fully follow the law as set out in the trial court’s instructions and as required by the juror’s oath. Swearingen v. State, 101 S.W.3d 89, 99 (Tex. Crim. App. 2003); Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim. App. 2002).

Before venire members may be excused for cause, the law must be explained to them, and they must be asked whether they can follow that law, regardless of their personal views. Gardner v. State, 306 S.W.3d 274, 295 (Tex. Crim. App. 2009).

“The attorneys do bear the burden of providing a sufficient record showing that the venire has been instructed and understands the law. Presumably, if the trial court fails to provide adequate instruction, the lawyers may provide the missing information to the venire or may ask the trial court to do so.” Waller v. State, 353 S.W.3d 257, 266 (Tex. App.–Fort Worth 2011, pet. ref’d).


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Seven Steps to Preserve Error— Denial of Challenge for Cause

1. Voir dire recorded. 2. Strike lists on the record. 3. Timely and specific objection. 4. Use peremptory challenge on that juror. 5. Exhaust peremptory challenges. 6. Request more strikes until request is denied. 7. Identify an objectionable person seated on the

jury on whom you would have exercised a peremptory challenge. When the trial court erroneously grants the

state’s challenge for cause, the defense must show also that the state used all its strikes (because otherwise the state could have used one of its peremptories in place of the challenge for cause), and that granting the challenge “deprived the defendant of a lawfully constituted jury.” Jones v. State, 982 S.W.2d 386, 394 (Tex. Crim. App. 1998). The logic of this is that the accused is not entitled to a specific fair jury, but only to a fair jury.

Nine Steps to Preserve Error— Grant of State’s Challenge for Cause

1. Voir dire recorded. 2. Strike lists on the record. 3. Timely and specific objection. 4. Use peremptory challenge on that juror. 5. Exhaust peremptory challenges. 6. Request more strikes until request is denied. 7. Identify an objectionable person seated on the

jury on whom you would have exercised a peremptory challenge.

8. Show that the state used all its strikes. 9. Show that the error deprived you of a “lawfully

constituted jury.”

1. Challenge for cause: bias “Jurors must be open-minded and persuadable,

with no extreme or absolute positions regarding the credibility of any witness.” Ladd v. State, 3 S.W.3d 547, 560 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1070, 120 S.Ct. 1680, 146 L.Ed.2d 487 (2000).

2. Vacillating jurors “When the record reflects that a venireman

vacillates or equivocates on his ability to follow the law, the reviewing court must defer to the trial court.” Moore v. State, 999 S.W.2d 385, 400 (Tex. Crim. App. 1999).

3. Trick questions The proponent of a challenge for cause has the

burden of establishing that the challenge is proper. Gardner v. State, 306 S.W.3d 274, 295 (Tex. Crim. App. 2009). The proponent does not meet this burden until the proponent shows that the venireperson understood the requirements of the law and could not overcome his prejudice well enough to follow the law. Id.

A common trick question is the “one-witness rule” question; it is asked correctly of the first juror (“assuming that we prove all of the elements beyond a reasonable doubt from the testimony of a single witness, would you require more to convict”), then a shorthand version of the question is asked of later jurors.

By the time the question reaches the back rows the jurors have lost track of the underlying assumption (that they believe the witness beyond a reasonable doubt). I have found that these later jurors are often rehabilitable because they answered “yes” only because they did not accept the assumption.

“Before the trial court may sustain a State’s challenge for cause on the ground that the venireman will not convict on the testimony of a single eyewitness, it must be demonstrated to the trial court that the venireman’s categorical refusal is predicated upon something other than his understanding of proof beyond a reasonable doubt.” Castillo v. State, 913 S.W.2d 529, 534 (Tex. Crim. App. 1995).

(It is doubtful that this is a proper area of inquiry in the vast majority of cases, in which the state does not intend to prove its case using a single witness, because it is not the law applicable to the case.)

4. Rehabilitation

A venireperson who initially indicates an inability to consider the full range of punishment may be rehabilitated through further questioning by the prosecutor or the trial court. See Von Byrd v. State, 569 S.W.2d 883, 891 (Tex. Crim. App. 1978); Westbrook v. State, 846 S.W.2d 155, 160-61 (Tex.App.—Fort Worth 1993, no pet.).

By statute, a juror who says that she has reached such a conclusion as to the guilt or innocence of the defendant as would influence her in finding a verdict may not be rehabilitated. TEX. CODE CRIM. PROC. art. 35.16(a)(10). 5. Court’s sua sponte strikes for cause

“A trial judge should not on its own motion excuse a prospective juror for cause unless the juror is absolutely disqualified from serving on a jury.” Goodman v. State, 701 S.W.2d 850, 856 (Tex. Crim. App. 1985) (overruled on other grounds, Hernandez v. State, 757 S.W.2d 744 (Tex. Crim. App. 1988).

“When the court sua sponte excludes a


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disqualified juror—one who is subject to challenge for cause—…[t]he defendant must establish that he was tried by a jury to which he had a legitimate objection.” Bell v. State, 724 S.W.2d 780 (Tex. Crim. App. 1986). He must also exhaust his strikes and request (and be denied) additional strikes. Green v. State, 764 S.W.2d 242, 247 (Tex. Crim. App.1989).

In support of a “legitimate objection,” “the appellant’s complaint about the jury must have a basis in the record. In addition, the appellant’s complaint should be directed to a specific juror or jurors. The criticism will invariably relate to the juror’s characteristics and attitudes that are inconsistent with a defendant’s objectives in a case but which would not support a challenge for cause but nevertheless distinguish the juror or jurors from other members of the panel.” Green v. State, 764 S.W.2d 242, 247 (Tex. Crim. App.1989).

Preserving Error: Court’s Sua Sponte Excusal of Disqualified Juror

1. Object to the excusal of the juror. 2. Exhaust all of his peremptory challenges and

request additional peremptory challenges. 3. At the conclusion of the voir dire claim that he is

to be tried by a jury to which he has a legitimate objection.

4. Specifically identify the juror or jurors of which he is complaining.

Green v. State, 764 S.W.2d 242, 247 (Tex. Crim. App.1989).

When the trial court sua sponte excludes a

qualified juror (that is, one not subject to a valid challenge for cause), “a defendant can show harm and thus reversible error by establishing that the State exhausted its peremptory challenges.” Green v. State, 764 S.W.2d 242, 246 (Tex. Crim. App. 1989). The rationale is that the state got the effect of an additional peremptory. Id.

Is the error-preservation portion of Green still good law in light of Jones v. State, 982 S.W.2d 386, 394 (Tex. Crim. App. 1998), which held that when the trial court erroneously grants the state’s challenge for cause, the defense must show not only that the state used all its strikes, but also that granting the challenge “deprived the defendant of a lawfully constituted jury”? The same logic that applies to the state erroneously granting the state’s challenge for cause might well apply to the court’s own challenge for cause.

6. Denied challenge for cause: To preserve error for a trial court’s erroneous

denial of a challenge for cause, appellant must show that: (1) he asserted a clear and specific challenge for cause; (2) he used a peremptory challenge on the complained-of venire member; (3) his peremptory challenges were exhausted; (4) his request for additional strikes was denied; and (5) an objectionable juror sat on the jury. Green v. State, 934 S.W.2d 92, 105 (Tex. Crim. App. 1996).

If a trial judge errs in overruling a challenge for cause against a venire member, then a defendant is harmed if he uses a peremptory strike to remove the venire member and thereafter suffers a detriment from the loss of the strike. Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim. App. 2002)

The test is whether a bias or prejudice would substantially impair the venire member’s ability to carry out the juror’s oath and judicial instructions in accordance with the law. Gardner v. State, 306 S.W.3d 274, 295 (Tex. Crim. App. 2009).

In reviewing a decision to deny a challenge for cause, courts look at the entire record to determine if there is sufficient evidence to support the ruling. Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim. App. 2002).

Before a prospective juror can be challenged under article 35.16, the law must be explained to the prospective juror and he or she must be asked whether they can follow the law regardless of their personal views. Jones v. State, 982 S.W.2d 386, 390 (Tex. Crim. App. 1998).

The proponent of a challenge for cause has the burden to show that the challenge was proper. Feldman v. State, 71 S.W.3d 738, 747 (Tex. Crim. App. 2002). The proponent does not meet that burden until the record shows that the prospective juror understood the requirements of the law and could not overcome any bias or prejudice. Id.

Appellate courts review denials of challenges for cause with considerable deference because the trial judge is in the best position to evaluate a venire member’s demeanor and responses. Gardner v. State, 306 S.W.3d 274, 295-96 (Tex. Crim. App. 2009).

When a venire member’s answers are vacillating, unclear, or contradictory, appellate courts accord particular deference to the trial court’s decision. Gardner v. State, 306 S.W.3d 274, 296 (Tex. Crim. App. 2009).

a. Error preservation

A party preserves error by a timely request that makes clear—by words or context—the grounds for the request and by obtaining a ruling on that request, whether express or implicit. TEX. R. APP. PROC. 33.1. Here, a party preserves error (but does not show harm) by making the challenge for cause and explaining


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clearly its grounds. b. Showing harm

In addition to preserving error, the defendant whose challenge for cause has been denied must be conscious of the need to show harm.

To show harm resulting from the denial of a challenge for cause, the defendant must show that he was forced by the denial to accept an objectionable juror. This showing requires a record showing that (1) he exhausted all of his peremptory challenges; (2) he requested more challenges; (3) that request was denied; and (4) he identified “an objectionable person seated on the jury on whom he would have exercised a peremptory challenge.” Anson v. State, 959 S.W.2d 203, 204 (Tex. Crim. App. 1997).

“The fundamental basis of this rule recognizes that without exhausting his peremptory challenges it is impossible to conclude that the defendant had to accept an objectionable juror.” Green v. State, 764 S.W.2d 242, 247 (Tex. Crim. App. 1989).

P. Peremptory challenges

“A peremptory challenge is made to a juror without assigning any reason therefor.” TEX. CODE CRIM. PROC. art. 35.14.

Each party gets fifteen peremptory challenges in a death-penalty trial with one defendant; if two or more defendants are tried together, each defendant gets eight peremptories and the state gets eight peremptories per defendant. TEX. CODE CRIM. PROC. art. 35.15(a).

In a non-death-penalty felony trial with one defendant, the state and defendant each get ten peremptory challenges; if two or more defendants are tried together, each defendant gets six peremptories and the state gets six peremptories per defendant. TEX. CODE CRIM. PROC. art. 35.15(b).

In a misdemeanor trial with one defendant, the state and defendant each get five peremptory challenges; if two or more defendants are tried together, each defendant gets three peremptories and the state gets three peremptories per defendant. TEX. CODE CRIM. PROC. art. 35.15(c).

If one or two alternate jurors are to be impanelled, each party gets one additional peremptory challenge; if three or four alternate jurors are to be impanelled, each party gets two additional peremptories. These challenges are to be used against alternate jurors only. TEX. CODE CRIM. PROC. art. 35.15(d).

Because no reason needs to be assigned for a peremptory challenge, the most common issue in the peremptory-challenge context is the Batson challenge.

Number of Peremptories (Single-Defendant Case)

1. State seeking death: fifteen. 2. Other felonies: ten. 3. Misdemeanor in district court: five. 4. Misdemeanor in county court: three.

TEX. CODE CRIM. PROC. art. 35.15 1. Batson

The rule of Batson v. Kentucky, 476 U.S. 79 (1986), that the state cannot exercise peremptory challenges for the purpose of excluding people from the jury on the basis of their race, is codified at Texas Code of Criminal Procedure article 35.261. The trial-court remedy for a Batson / 35.261 violation is dismissal of the array and calling of a new array. TEX. CODE CRIM. PROC. art. 35.261

Batson is more than just race-based peremptories by the state, though. Race-based peremptory challenges by the defense are barred by the Batson line of cases, Georgia v. McCollum, 505 U.S. 42 (1992), as are sex-based peremptory challenges, J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994).

a. Batson procedure

To establish a prima facie case under Batson, a defendant must show (1) that the state exercised its strikes to exclude members of a cognizable racial group from the venire, and (2) that this fact, along with any other relevant facts and circumstances, raise an inference that the State exercised these strikes against the venire members because of their race. See Batson v. Kentucky, 476 U.S. at 96, 106 S.Ct. 1712.

While there is, for obvious reasons, no caselaw on point, in theory the procedure for the state to allege a defense Batson violation would be the same.

Undisputed observations and uncontradicted statements of trial counsel can provide support in the record for a prima facie showing. See Yarborough v. State, 947 S.W.2d 892, 895 (Tex. Crim. App. 1997); Emerson v. State, 820 S.W.2d 802, 804 (Tex. Crim. App. 1991); Greer v. State, 310 S.W.3d 11, 14 (Tex.App.—Dallas 2009, no pet.).

A pattern of exercising strikes against venire members of a particular race may establish a prima facie case. See Keeton v. State, 749 S.W.2d 861, 867 (Tex. Crim. App. 1988).

“What may be revealing, however, is a repetition of such strikes in suspiciously large numbers—numbers larger than one would expect if race had nothing to do with it.” Linscomb v. State, 829 S.W.2d 164, 166 (Tex. Crim. App. 1992).

The appellate remedy for a trial court’s failure to


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conduct a Batson hearing when the defense has made a prima facie case of racially motivated strikes is abatement for a hearing. “[W]e have long abated appeals and remanded cases to the trial court to conduct a Batson hearing when the trial court had erroneously denied such a hearing after the requisite prima facie showing had been made.” Hutchinson v. State, 86 S.W.3d 636, 638–39 (Tex. Crim. App. 2002). But “it would be prudent for a trial court to allow a full Batson hearing if there is any substantial argument as to whether the defendant made a prima facie showing of racial discrimination in the State’s exercise of peremptory strikes. By proceeding in this fashion, the court could create a record while memories are fresh.” Hassan v. State, 346 S.W.3d 234, 242 (Tex. App.—Houston [14th Dist.] 2011).

The second step of the Batson challenge process “does not demand an explanation that is persuasive, or even plausible,” Purkett v. Elem, 514 U.S. 765, 767-68 (1995), but the court “cannot merely accept those explanations at face value and end the Batson inquiry.” Whitsey v. State, 796 S.W.2d 707, 716 (Tex. Crim. App. 1989). The trial judge must “consider whether the facially neutral explanations are contrived to avoid admitting acts of group discrimination” Keeton v. State, 749 S.W.2d 861, 868 (Tex. Crim. App. 1988). A prosecutor may not rebut the presumption merely by denying that he had a discriminatory motive or by “affirming his good faith in individual selections,” Batson v. Kentucky, 476 U.S. 79, 97 (1986).

The Court of Criminal Appeals has laid out a non-exclusive list of five factors that tend to show that the state’s reasons for a challenge are not supported by the record or are an impermissible pretext:

Five Things that Call Into Question

“Race-Neutral” Reasons

1. An explanation based on a group bias where the group trait is not shown to apply to the challenged juror specifically.

2. No examination or only a perfunctory examination of the challenged juror.

3. Disparate examination of the challenged juror, i.e., questioning challenged venireperson so as to evoke a certain response without asking the same question of other panel members.

4. The reason given for the challenge is unrelated to the facts of the case.

5. Disparate treatment where there is no difference between responses given and unchallenged venirepersons.

Keeton v. State, 749 S.W.2d 861, 866 (Tex. Crim. App. 1988).

“The presence of any one of these factors tends to show that the State's reasons are not actually supported by the record or are an impermissible pretext.” Whitsey v. State, 796 S.W.2d 707, 713 (Tex. Crim. App. 1989).

Once the State has articulated a race-neutral explanation, the burden shifts back to the accused to show that the State’s explanations are actually a pretext for discrimination. Hernandez v. New York, 500 U.S. 352, 360 (1991). It is not enough merely to show that a proffered explanation turns out to be incorrect. Johnson v. State, 68 S.W.3d 644 (Tex. Crim. App. 2002).

When the State offers numerous race-neutral reasons for challenging a venireperson, the fact that other venirepersons possessed one or more of the objectionable attributes is not sufficient to establish disparate treatment. See Cantu v. State, 842 S.W.2d 667, 689 (Tex. Crim. App. 1992).

While “‘[D]iligent counsel’ will not rely on written questionnaires to supply any information that counsel deems material.” Gonzales v. State, 3 S.W.3d 915, 917 (Tex. Crim. App. 1999), a venire member’s written answers to a juror questionnaire may provide a valid reason for a peremptory strike. See, e.g., Jasper v. State, 61 S.W.3d 413, 422 (Tex. Crim. App. 2001); Camacho v. State, 864 S.W.2d 524, 529 (Tex. Crim. App. 1993).


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Batson Procedure

1. On the record. 2. After the parties deliver their strike lists to the

clerk. 3. Before jury is sworn. 4. Show that the state exercised its strikes to

exclude members of a cognizable racial group. 5. Show race of accused (CCP 35.261), race of

venirepeople, race of struck jurors. 6. Show facts that raise an inference that the state

struck certain people because of their race. 7. Request a hearing. 8. State provides race-neutral explanation. 9. Rebut state’s proffered explanation (for example,

evidence of a pattern or practice; evidence of disparate questioning of minority jurors; evidence of racially motivated shuffle).

10. Make sure prosecutor’s notes are part of record.

b. Some race-neutral reasons: 1. Last name shared with “known criminal family.”

Nieto v. Texas, — S.W.3d —, 2012 WL 1605150, at *5 (Tex. Crim. App. May 9, 2012).

2. Starting a new job. Meshack v. State, No. 05-04-01215-CR, 2005 WL 2995098, at *5 (Tex. App.—Dallas Nov. 9, 2005, no pet.).

3. Failed to understand the State’s legal burdens. Meshack v. State, No. 05-04-01215-CR, 2005 WL 2995098, at *5 (Tex. App.—Dallas Nov. 9, 2005, no pet.).

4. Wearing a large peace sign necklace. Keovixay v. State, Nos. 05-03-01407-CR, 05-03-01408-CR, 2004 WL 1535168, at *3 (Tex. App.—Dallas July 9, 2004, pet. ref’d).

5. Appeared to be sleeping during the court’s remarks to the jury panel. Keovixay v. State, Nos. 05-03-01407-CR, 05-03-01408-CR, 2004 WL 1535168, at *3 (Tex. App.—Dallas July 9, 2004, pet. ref’d).

6. Prior conviction. Holmes v. State, No. 01-03-00281-CR, 2004 WL 1119954 (Tex. App.—Houston [1st Dist.] May 20, 2004, pet. ref’d).

7. Failure to complete jury-selection questionnaire. Ealoms v. State, 983 S.W.2d 853 (Tex. App.—Waco 1998, pet. ref’d).

8. Bad record during prior jury service. Webb v. State, 840 S.W.2d 543, 545-46 (Tex.App.—Dallas 1992, no pet.);

9. Inattentiveness or disinterested appearance and “nodding in agreement with the defense” during voir dire. Tate v. State, 939 S.W.2d 738, 744-45 (Tex.App.—Houston [14th Dist.] 1997, pet. ref’d).

10. Inattentiveness or disinterested appearance during

voir dire. Moss v. State, 877 S.W.2d 895, 899 (Tex.App.—Waco 1994, no pet.)

11. Relative or friend in prison. Chambers v. State, 866 S.W.2d 9, 24 (Tex. Crim. App. 1993), cert. denied, 511 U.S. 1100, 114 S.Ct. 1871, 128 L.Ed.2d 491 (1994)

Factors Appellate Courts Consider

in Reviewing Batson Challenges

1. Whether the proponent of the peremptory challenge exercised its challenges to eliminate a far greater proportion of jurors of the same race of the juror in question;

2. Whether the reasons offered for striking the juror in question appeared to apply equally well to other jurors of a different race who were not struck;

3. Whether the proponent of the peremptory challenge utilized its option to shuffle the jury panels in a manner that supported an inference of race discrimination;

4. Whether the proponent of the peremptory challenge directed questions expressly designed to elicit grounds for peremptory challenges disproportionately, in a manner that suggested an intent to single out jurors of an identified race for elimination; and

5. Whether the proponent of the peremptory challenge had followed a formal policy to exclude jurors of an identified race.

Adair v. State, 336 S.W.3d 680, 687 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d.)

IV. FURTHER READING • Garcia-Colson et al., Trial in Action (“The

Persuasive Power of Psychodrama,” including a substantial section on voir dire.

• SunWolf, Practical Jury Dynamics Second Edition, LexisNexis 2007 (how juries work [and how they don’t]).

• Georgetown Law Journal Annual Review of Criminal Procedure (for an overview of federal criminal procedure on any topic).

V. ACKNOWLEDGEMENTS Brian Wice’s paper on preservation of error

includes a section on voir dire; this paper’s lists of steps to preserve error are thanks to Brian, except for any errors, which are mine.

Thanks to aspiring lawyers Jill Propst, Texas Tech University School of Law 2012; and Mariel Adrianna de la Garza, University of Texas Law


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School 2012, for editorial assistance; to hired-gun editor Amy Derby ([email protected]) for casting an eye not jaundiced by a legal education on this paper; and to Harris County Assistant District Attorney Scott Durfee for inviting me to write this paper, and for giving it a last-minute read to correct some of the more glaring errors.



Appendix B: Table of Authorities

CASES Abron v. State, 523 S.W.2d 405, 408 (Tex. Crim. App. 1975) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 6, 8 Anson v. State, 959 S.W.2d 203, 204 (Tex. Crim. App. 1997) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 10, 15 Atkins v. State, 951 S.W.2d 787 (Tex. Crim. App.1997) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 8, 9 Baldwin v. New York, 399 U.S. 66 (1970) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 1 Barajas v. State, 93 S.W.3d 36 (Tex. Crim. App. 2002) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 6, 8 Batchelor v. State, 757 S.W.2d 455 (Tex. App.—Dallas 1988, pet. ref’d) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 5 Batson v. Kentucky, 476 U.S. 79 (1986) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 16 Bell v. State, 724 S.W.2d 780, 795 (Tex. Crim. App. 1986) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 14 Blue v. State, 41 S.W.3d 129 (Tex. Crim. App.2000) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 12 Boyd v. State, 811 S.W.2d 105, 115-‐16 (Tex. Crim. App. 1991) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 5, 7 Butler v. State, 830 S.W.2d 125, 131 (Tex. Crim. App. 1992) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 12, 13 Caldwell v. State, 818 S.W.2d 790 (Tex. Crim. App.1991) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 11 Camacho v. State, 864 S.W.2d 524 (Tex. Crim. App. 1993) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 17 Cantu v. State, 842 S.W.2d 667, 686 (Tex. Crim. App. 1992). -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 3, 5, 17 Cardenas v. State, 325 S.W.3d 179 (Tex. Crim. App. 2010) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 8 Castaneda v. Partida, 430 U.S. 482, 494 (1977) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 3 Castillo v. State, 913 S.W.2d 529, 534 (Tex. Crim. App. 1995) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 14 Chambers v. State, 866 S.W.2d 9, 24 (Tex. Crim. App. 1993) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 18 Chambers v. State, 903 S.W.2d 21 (Tex. Crim. App. 1995) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 4 Chappell v. State, 850 S.W.2d 508 (Tex. Crim. App. 1993) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 5 Coleman v. State, 881 S.W.2d 344 (Tex. Crim. App. 1994) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 7 Cuero v. State, No. 01-‐93-‐00989-‐CR, 1994 WL 620897 (Tex. App.—Houston [1st Dist.] Nov. 10, 1994) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 9 Cuevas v. State, 742 S.W.2d 331 (Tex. Crim. App.1987) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 7 Cumbo v. State, 760 S.W.2d 251, 255–56 (Tex. Crim. App. 1988) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 8 Daniel v. State, No. 01-‐03-‐00469-‐CR, 2004 WL 1485470 (Tex. App.—Houston [1st Dist.] July 1, 2004, no pet.) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 7 Davis v. State, 313 S.W.3d 317 (Tex. Crim. App. 2010) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 7, 8 Davis v. State, 782 S.W.2d 211 (Tex. Crim. App. 1989 -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 5 De La Rosa v. State, 414 S.W.2d 668 (Tex. Crim. App. 1967) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 7 Dickson v. State, No. 74533, 2001 WL 34736485 (Tex. Crim. App. Oct. 13, 2004) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 7 District of Columbia v. Clawans, 300 U.S. 617 (1937) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 1 Dues v. State, 634 S.W.2d 304 (Tex. Crim. App. [Panel Op.] 1982) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 11 Duncan v. Louisiana, 391 U.S. 145, 149, 88 S. Ct. 1444, 1447 (1968) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 2 Duren v. Missouri, 439 U.S. 357 (1979) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 2 Ealoms v. State, 983 S.W.2d 853 (Tex. App.—Waco 1998, pet. ref’d) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 17 Emerson v. State, 820 S.W.2d 802 (Tex. Crim. App. 1991) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 16 Esquivel v. State, 595 S.W.2d 516 (Tex. Crim. App. 1980) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 2 Ex parte McKay, 819 S.W.2d 478 (Tex. Crim. App. 1990) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 1 Feldman v. State, 71 S.W.3d 738 (Tex. Crim. App. 2002) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 12, 13, 15 Feldman v. State, 71 S.W.3d 738, 747 (Tex. Crim. App. 2002). -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 15 Ford v. State, 73 S.W.3d 923 (Tex. Crim. App. 2002) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 5 Ford v. State, 73 S.W.3d 923, 924 (Tex. Crim. App. 2002) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 5 Franklin v. State, 23 S.W.3d 81 (Tex.App.—Texarkana 2000, no pet.) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 10 Franklin v. State, 576 S.W.2d 621 (Tex. Crim. App. 1978) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 1 Gardner v. State, 306 S.W.3d 274 (Tex. Crim. App. 2009) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 13, 14, 15 Gardner v. State, 733 S.W.2d 195 (Tex. Crim. App. 1987) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 12 Garza v. State, 7 S.W.3d 164, 166 (Tex. Crim. App. 1999) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 5 Georgia v. McCollum, 505 U.S. 42 (1992) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 10, 16 Godfrey v. State, 859 S.W.2d 583 (Tex. App.–Houston [14th Dist.] 1993, no pet.) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 11 Gonzales v. State, 2 S.W.3d 600, 603 (Tex.App.—Texarkana 1999, no pet.) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 6, 10 Gonzales v. State, 3 S.W.3d 915 (Tex. Crim. App. 1999) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 17 Gonzalez v. State, 296 S.W.3d 620, 632 (Tex. App.—El Paso 2009, pet. ref’d) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 5 Goodman v. State, 701 S.W.2d 850 (Tex. Crim. App. 1985) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 14 Green v. State, 764 S.W.2d 242 (Tex. Crim. App.1989) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 14, 15 Green v. State, 934 S.W.2d 92 (Tex. Crim. App. 1996) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 15 Greer v. State, 310 S.W.3d 11, 14 (Tex.App.—Dallas 2009, no pet.) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 16 Hackbarth v. State, 617 S.W.2d 944 (Tex. Crim. App. [Panel Op.] 1981) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 11


Hammett v. State, 578 S.W.2d 699 (Tex. Crim. App. 1979) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 12 Hassan v. State, 346 S.W.3d 234 (Tex. App.—Houston [14th Dist.] 2011) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 16 Hernandez v. New York, 500 U.S. 352 (1991). -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 17 Hernandez v. State, 506 S.W.2d 884 (Tex. Crim. App. 1974) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 13 Hernandez v. State, 563 S.W.2d 947, 950 (Tex. Crim. App. 1978) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 8 Hernandez v. State, 757 S.W.2d 744 (Tex. Crim. App. 1988) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 14 Herring v. State, 758 S.W.2d 849 (Tex. App.–Corpus Christi 1988, pet. ref’d) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 11 Hogan v. State, 496 S.W.2d 594 (Tex. Crim. App. 1973) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 11 Holland v. Illinois, 493 U.S. 474 (1990) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 2 Holmes v. State, No. 01-‐03-‐00281-‐CR, 2004 WL 1119954 (Tex. App.—Houston [1st Dist.] May 20, 2004, pet. ref’d) -‐-‐-‐-‐-‐-‐-‐-‐ 17 Hutchinson v. State, 86 S.W.3d 636 (Tex. Crim. App. 2002) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 16 In re Commitment of Hill, 334 S.W.3d 226 (Tex. 2011) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 6 In re V.M.S, No. 01–03–00072–CV, 2004 WL 2475111 (Tex. App.—Houston Nov. 4, 2004) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 7, 11 J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 16 Jasper v. State, 61 S.W.3d 413, 422 (Tex. Crim. App. 2001) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 12, 17 Johnson v. State, 68 S.W.3d 644 (Tex. Crim. App. 2002) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 17 Johnson v. State, 982 S.W.2d 403 (Tex. Crim. App. 1998) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 8 Jones v. State, 223 S.W.3d 379, 381 (Tex. Crim. App. 2007) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 6, 11 Jones v. State, 833 S.W.2d 146 (Tex. Crim. App. 1992) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 5 Jones v. State, 982 S.W.2d 386 (Tex. Crim. App. 1998) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 13, 14, 15 Keeton v. State, 749 S.W.2d 861 (Tex. Crim. App. 1988) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 16, 17 Keovixay v. State, Nos. 05-‐03-‐01407-‐CR, 05-‐03-‐01408-‐CR, 2004 WL 1535168 (Tex. App.—Dallas July 9, 2004, pet. ref’d) 17 Ladd v. State, 3 S.W.3d 547 (Tex. Crim. App. 1999) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 13 Lane v. State, 828 S.W.2d 764 (Tex. Crim. App. 1992) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 7 Ledbetter v. State, No. 01-‐07-‐00421-‐CR, 2008 WL 2756684 (Tex. App.—Houston July 17, 2008). -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 7 Linnell v. State, 935 S.W.2d 426 (Tex. Crim. App. 1996) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 4 Linscomb v. State, 829 S.W.2d 164 (Tex. Crim. App. 1992). -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 16 Loredo v. State, 59 S.W.3d 289, (Tex. App.–Corpus Christi-‐Corpus Christi 2001) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 6, 10 Machetti v. Linahan, 679 F.2d 236, 242 (11th Cir. 1982) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 2 Mathis v. State, 576 S.W.2d 835, 836–837 (Tex. Crim. App. 1979) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 6, 8 Mayo v. State, 4 S.W.3d 9 (Tex. Crim. App. 1999) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 4 McCoy v. State, 996 S.W.2d 896 (Tex. App.–Houston [14th Dist.] 1999, pet. ref’d) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 8 McGee v. State, 35 S.W.3d 294, 298 (Tex.App.—Texarkana 2001, no pet.) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 6, 10 Meshack v. State, No. 05-‐04-‐01215-‐CR, 2005 WL 2995098 (Tex. App.—Dallas Nov. 9, 2005, no pet.) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 17 Milton v. State, 599 S.W.2d 824 (Tex. Crim. App. 1980) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 7 Moore v. State, 999 S.W.2d 385 (Tex. Crim. App. 1999) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 12, 14 Morales v. State, 32 S.W.3d 862 (Tex. Crim. App. 2000) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 5 Nelson v. State, 129 S.W.3d 108 (Tex. Crim. App. 2004) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 4 Nieto v. Texas, — S.W.3d —, 2012 WL 1605150 (Tex. Crim. App. May 9, 2012) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 17 Nunfio v. State, 808 S.W.2d 482 (Tex. Crim. App. 1991) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 8 Powell v. State, 631 S.W.2d 169 (Tex. Crim. App. [Panel Op.] 1982) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 7 Powers v. Ohio, 499 U.S. 400 (1991) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 10 Presley v. Georgia, 130 S. Ct. 721, 725 (2010) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 4 Purkett v. Elem, 514 U.S. 765 (1995) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 16 Rich v. State, 160 S.W.3d 575, 577 (Tex. Crim. App. 2005) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 10, 11 Richardson v. State, 83 S.W.3d 332 (Tex. App.–Corpus Christi 2002) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 9 Rios v. State, 4 S.W.3d 400 (Tex. App.—Houston [1st Dist.] 1999, pet. dism’d) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 11 Rivas v. Liberty Mut. Ins. 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App. 1985) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 6, 7 Smith v. Texas, 311 U.S. 128 (1940) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 2 Standefer v. State, 59 S.W.3d 177 (Tex. Crim. App. 2001) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 6, 7, 8, 9 Steadman v. State, 360 S.W.3d 499, 510 (Tex. Crim. App. 2012) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 4 Swearingen v. State, 101 S.W.3d 89, 99 (Tex. Crim. App. 2003) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 13 Tanner v. United States, 483 U.S. 107 (1987) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 1


Tate v. State, 939 S.W.2d 738. (Tex.App.—Houston [14th Dist.] 1997, pet. ref’d) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 17 Taylor v. Louisiana, 419 U.S. 522 (1975) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 2 Trevino v. State, 572 S.W.2d 336 (Tex. Crim. App. [Panel Op.] 1978) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 6 U.S. v. McAnderson, 914 F.2d 934 (7th Cir. 1990) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 2 U.S. v. Miller, 116 F.3d 641 (2nd Cir. 1997) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 3 U.S. v. Quinones, 511 F.3d 289, 301-‐02 (2nd Cir. 2007) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 6 U.S. v. Raszkiewicz, 169 F.3d 459 (7th Cir. 1999) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 2 U.S. v. Rogers, 73 F.3d 774, 775 (8th Cir. 1996) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 2 Villarreal v. State, 617 S.W.2d 703 (Tex. Crim. App. [Panel Op.] 1981) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 5 Von Byrd v. State, 569 S.W.2d 883, 891 (Tex. Crim. App. 1978) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 14 Wainwright v. Witt, 469 U.S. 412 (1985) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 10 Waller v. Georgia, 467 U.S. 39, 45, 104 S. Ct. 2210, 2215 (1984) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 4 Waller v. State, 353 S.W.3d 257 (Tex. App.–Fort Worth 2011, pet. ref’d). -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 13 Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 12 Webb v. State, 840 S.W.2d 543 (Tex.App.—Dallas 1992, no pet.) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 17 Westbrook v. State, 846 S.W.2d 155, 160-‐61 (Tex.App.—Fort Worth 1993, no pet.) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 14 White v. State, 629 S.W.2d 701 (Tex.Crim.App.1981) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 7 Whitsey v. State, 796 S.W.2d 707 (Tex. Crim. App. 1989) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 16, 17 Wilkerson v. State, 681 S.W.2d 29, 30 (Tex. Crim. App. 1984) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 5 Williams v. State, 719 S.W.2d 573, 577 (Tex. Crim. App. 1986) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 5 Wright v. State, 28 S.W.3d 526, 534 (Tex. Crim. App. 2000) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 11 Yarborough v. State, 947 S.W.2d 892 (Tex. Crim. App. 1997) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 16

STATUTES Tex. Code Crim. Proc. art. 1.05 -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 1 Tex. Code Crim. Proc. art. 33.011 -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 5 Tex. Code Crim. Proc. art. 33.03 -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 3 Tex. Code Crim. Proc. art. 35.03 -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 11 Tex. Code Crim. Proc. art. 35.07 -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 1 Tex. Code Crim. Proc. art. 35.11 -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 4 Tex. Code Crim. Proc. art. 35.14 -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 15 Tex. Code Crim. Proc. art. 35.15(a) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 15 Tex. Code Crim. Proc. art. 35.15(b) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 15 Tex. Code Crim. Proc. art. 35.15(c) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 15 Tex. Code Crim. Proc. art. 35.15(d) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 15 Tex. Code Crim. Proc. art. 35.16(b) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 3 Tex. Code Crim. Proc. art. 35.17 -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 4, 5 Tex. Code Crim. Proc. art. 35.17(1) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 4 Tex. Code Crim. Proc. art. 35.17(2) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 4 Tex. Code Crim. Proc. art. 35.22 -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 9 Tex. Code Crim. Proc. art. 35.261 -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 15 Tex. Code Crim. Proc. art. 38.14 -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 8 Tex. Code Crim. Proc. art. 38.141 -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 8 Tex. Code Crim. Proc. art. 38.15 -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 8 Tex. Code Crim. Proc. art. 44.46(1) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 3 Tex. Code Crim. Proc. art. 44.46(2) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 3 Tex. Gov’t Code § 62.007 -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 1 Tex. Govt. Code § 62.001 -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 2 Tex. Govt. Code § 62.001(a) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 1 Tex. Govt. Code § 62.011 -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 1 Tex. Govt. Code § 62.102 -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 2, 3 Tex. Govt. Code § 62.103 -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 3 Tex. Govt. Code § 62.103(b) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 3 Tex. Govt. Code § 62.1041(b) -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 3 Tex. Govt. Code § 62.110(c). -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 1, 11 Tex. Govt. Code §§ 62.002-‐62.004 -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 1 Tex. Govt. Code §§ 62.012-‐62.013 -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 1

RULES Tex. R. App. Proc. 33.1 -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 14


CONSTITUTIONAL PROVISIONS Tex. Const. art. I § 10 -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 1, 3 Tex. Const. art. I § 4 -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 9 Tex. Const. art. VI § 3 -‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐ 9

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