DARRYL RAY SHAFTNER,FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-00488-CR
NO. 05-88-00489-CR
 
DARRYL RAY SHAFTNER,FROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
        APPELLEE.OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES McCLUNG, STEWART, AND BAKER
OPINION BY JUSTICE BAKER
MAY 26, 1989
        A jury convicted appellant of murder and voluntary manslaughter. The jury assessed punishment at forty years' confinement and a $4,000 fine for the murder and ten years' confinement, probated for ten years, and a $1,000 fine for the voluntary manslaughter. We overrule appellant's four points of error and affirm the trial court's judgment.
        Appellant argues in his first point of error that the trial court, over his objection, improperly granted a State challenge for cause directed at a prospective juror. At the end of the voir dire process and before the jury was sworn, the trial court overruled appellant's additional objection and denied his request for an additional peremptory challenge. Appellant had used all of his peremptory challenges, and he advised the trial court that he was forced to accept an unacceptable juror.
        Appellant asserts that the trial court's action was unwarranted and that it gave the State an extra peremptory challenge. Appellant contends that he was deprived of the right to a fair trial. The State argues that the prospective juror was properly excused for cause based on his bias against the law and in favor of appellant.
        The party seeking exclusion of a prospective juror has the burden of demonstrating that exclusion is proper. The credible proof must preponderate in favor of exclusion. Hernandez v. State, 757 S.W.2d 744, 753 (Tex. Crim. App. 1988). A prospective juror may be challenged for cause if he has a bias or prejudice in favor of or against the defendant. The State may challenge for cause if the prospective juror has a bias or prejudice against any phase of the law upon which the State is entitled to rely. TEX. CODE CRIM. PROC. ANN. art. 35.16(a)(9), (b)(3) (Vernon 1989).
        The decision as to whether a venireman is disqualified necessarily involves both findings of fact and conclusions of law. To the extent that the trial court's determination is a finding of fact, it is entitled to the same deference on appeal as any other finding of fact. See Hernandez, 757 S.W.2d at 753. When bias or prejudice is not established as a matter of law, the trial court has discretion to determine if bias or prejudice exists to such a degree that the prospective juror is disqualified. Anderson v. State, 633 S.W.2d 851, 853-54 (Tex. Crim. App. 1982). However, to the extent that factual findings are involved, the trial court's action should not be reviewed only for an abuse of discretion. Appellate review should determine whether the evidence was sufficient to support the trial court's implied finding of fact. See Hernandez, 757 S.W.2d at 753.
        When a prospective juror is shown to be biased as a matter of law, he must be excused when challenged, even if he states that he can set his bias aside. Bias exists as a matter of law when a prospective juror admits that he is biased for or against a defendant. Anderson, 633 S.W.2d at 854. A prospective juror can also be biased against the law as a matter of law. See Clark v. State, 717 S.W.2d 910, 917 (Tex. Crim. App. 1986), cert. denied, 107 S. Ct. 2202 (1987).
        Appellant suggests that the excluded venireman was asked misleading questions by the prosecutor. Appellant argues that the prosecutor's questions erroneously implied that the prospective juror could not be required to serve regardless of whether his belief would substantially impair his ability to serve as a juror. See Hernandez, 757 S.W.2d at 752-53.
        We have examined all pertinent parts of the record, and we conclude that appellant's contentions are unsupported by the record and without merit. The prospective juror unequivocally stated, "I can't stand in judgment of [the defendant]." He said that his inability to judge others was based on personal religious belief and that his mind could not be changed on this issue. He also stated that if he were required to pass judgment on a man, he would have to find the man innocent.
        The prosecutor's questions were entirely proper and were directed toward determining the prospective juror's qualifications. Appellant's reliance on Hernandez is misplaced and based upon an improperly selective reading of Hernandez. The record reflects that although appellant's counsel aggressively cross-examined the venireman, the effort was futile because he steadfastly held to his sincere personal beliefs. We hold that the trial court properly granted the State's challenge for cause. The prospective juror was disqualified as a matter of law based on bias against the law and in favor of the defendant. See TEX. CODE CRIM. PROC. ANN. art. 35.16(a)(9), (b)(3) (Vernon 1989); Clark, 717 S.W.2d at 917; Anderson, 633 S.W.2d at 854; Phillips v. State, 661 S.W.2d 226, 229 (Tex. App.--Houston [1st Dist.] 1983, pet. ref'd). We overrule appellant's first point of error.
        In his second point of error, appellant contends that the trial court erred by overruling appellant's objection to testimony which commented on the defendant's failure to testify. During the State's case-in-chief, the police officer who arrested appellant was called to testify. The prosecutor asked the officer if he asked appellant to give a statement concerning the facts of the offense. Appellant's objection on grounds of relevance and materiality was overruled. The prosecutor then asked if a statement about the facts of the offense was ever given. Appellant's objection that the question was a comment on the defendant's failure to testify was overruled. The trial court granted appellant a continuing objection. During a short voir dire examination, the officer stated that appellant was under arrest at the time about which he was testifying. Following this voir dire examination, the prosecutor again asked if appellant gave a statement concerning the facts of the offense. The officer answered "no." No objection was made to the question or answer.
        An error regarding admission of evidence is not preserved for appellate review absent a timely objection at trial. It is incumbent on defendant's counsel to voice a timely and specific objection to a question which allegedly infringes on the defendant's right to remain silent. An objection must not only identify what is objected to but must set forth grounds for the objection. Cisneros v. State, 692 S.W.2d 78, 82-83 (Tex. Crim. App. 1985). An objection to evidence based on grounds of irrelevance, immateriality, and incompetence is too general and vague to apprise the trial court of alleged error and therefore fails to preserve anything for review. See Smith v. State, 683 S.W.2d 393, 404 (Tex. Crim. App. 1984). Running objections will not preserve error, and the defendant must object every time allegedly inadmissible evidence is offered. See Goodman v. State, 701 S.W.2d 850, 863 (Tex. Crim. App. 1985).
        We hold that appellant has failed to preserve his second point of error. Since the alleged error occurred during the State's case-in-chief before appellant even had the opportunity to testify, the error could not have been a comment on his failure to testify. The proper ground of objection would have been that the testimony would be a comment on appellant's postarrest silence. See Hawk v. State, 482 S.W.2d 183, 184 (Tex. Crim. App. 1972). Appellant's running objection was ineffective for preserving error and was not based on a proper and specific ground for objection. Since appellant failed to make the proper objection and did not object to the last question and answer, he has failed to preserve error. See TEX. R. APP. P. 52(a); TEX. R. CRIM. EVID. 103(a)(1). We overrule appellant's second point of error.
        In his third point of error, appellant argues that the trial court erred by failing to include in the punishment stage jury charge requested terms and conditions of probation that may be imposed. Appellant objected to the failure to instruct the jury on two specified terms and conditions of probation that could be imposed. See TEX. CODE CRIM. PROC. ANN. art. 42.12, §§ 6b(a), 6d(a) (Vernon Supp. 1989).
        Although it is considered good practice to enumerate in the charge the probationary conditions which the court may impose, the failure to do so is not harmful to the accused. Flores v. State, 513 S.W.2d 66, 69 (Tex. Crim. App. 1974); see Yarbrough v. State, 742 S.W.2d 62, 63-64 (Tex. App.--Dallas, pet. granted). The trial court did not commit reversible error. See Anderson v. State, 681 S.W.2d 651, 652 (Tex. App.--Amarillo 1984, pet. ref'd). The case of Ellis v. State, 723 S.W.2d 671 (Tex. Crim. App. 1986) (per curiam), upon which appellant relies, is clearly distinguishable and inapplicable to this case. We overrule appellant's third point of error.
        Appellant argues in his final point of error that the trial court erred by overruling appellant's objection to allegedly bolstering testimony, thereby depriving appellant of a fair trial. The State contends that the testimony did not constitute bolstering.
        During the State's case-in-chief, a State witness testified that appellant threatened to kill his (appellant's) wife. During the defense's case-in-chief, appellant stated that he never told anyone that he was going to kill his wife. The State was allowed to call a rebuttal witness out of order, and this witness, Troy Nitcholas, testified that appellant said that he was going to kill his wife. The defense resumed its case-in-chief, and appellant again stated that he had not threatened his wife, although he conceded that some heated statements could have been interpreted as threats. On rebuttal, the State presented Ellen Duffey as a witness. Over appellant's bolstering objection, Duffey was allowed to testify that Nitcholas had told her that appellant had told him that he was going to kill his wife.
        Bolstering occurs when evidence is improperly used by a party to add credence or weight to earlier unimpeached evidence offered by the same party. Livingston v. State, 739 S.W.2d 311, 332 (Tex. Crim. App. 1987), cert. denied, 108 S. Ct. 2858 (1988). In this case, appellant impeached Nitcholas by again denying that he had threatened his wife. Therefore, Duffey's testimony did not constitute improper bolstering. See Livingston, 739 S.W.2d at 332. Even if the testimony was improper bolstering, it added very little to the State's case and was therefore harmless error beyond a reasonable doubt. See TEX. R. APP. P. 81(b)(2); Davis v. State, 630 S.W.2d 769, 773 (Tex. App.--Houston [1st Dist.]), pet. ref'd per curiam, 636 S.W.2d 197 (Tex. Crim. App. 1982). We overrule appellant's fourth point of error.
        We affirm the trial court's judgment.
 
                                                                                                                   __________________________
                                                          JAMES A. BAKER
                                                          JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
 
88-00488.F
 
 
File Date[01-02-89]
File Name[880488F]