JEREMY GARCIA, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued June 20, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00345-CR
No. 05-07-00346-CR
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JEREMY GARCIA, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause Nos. F04-57894-I & F06-63781-UI
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OPINION
Before Justices Wright, Bridges, and Mazzant
Opinion By Justice Mazzant
        Jeremy Garcia was convicted of murder and sentenced by the jury to sixty years in prison.   See Footnote 1  In a separate case, appellant's community supervision for delivery of a controlled substance was revoked and he was sentenced to five years in prison.   See Footnote 2  In four issues, he argues that the trial court unfairly limited his questions during voir dire, lacked jurisdiction, improperly admitted evidence of an extraneous offense, and erred in refusing nine proposed jury instructions. We affirm the trial court's judgments.
Discussion
        State's Cross Point
        The State argues that appellant waived his appeal in the probation revocation, appeal number 05-07-00345-CR. Although appellant filed notices of appeal in both 05-07-00345-CR and 05-07- 00346-CR, his brief challenges only the conviction in 05-07-00346-CR. The brief filed by appellant does not raise any issues relating to the probation revocation and appellant does not seek any relief concerning that conviction. This Court notified appellant of this deficiency by letter on December 10, 2007, and received no response. Having found no fundamental error in 05-07-00345-CR, we therefore affirm the trial court's judgment in that case.
        Jury Selection
        Turning to the murder case, appellant's first issue claims (1) the trial court unfairly limited his voir dire of the jury panel by not allowing him to discuss a Dallas Morning News article published that day, and (2) that it erred in sustaining the State's objection to a question posed by defense counsel regarding how jurors would weigh ballistics evidence with conflicting witness testimony.   See Footnote 3 
        The trial court has broad discretion over the process of selecting a jury and may impose reasonable limits on voir dire. Sells v. State, 121 S.W.3d 748, 755 (Tex. Crim. App. 2003); Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002). The propriety of any voir dire question rests within the sound discretion of the trial court and only an abuse of that discretion will merit reversal on appeal. See Sells, 121 S.W.3d at 755; Barajas, 93 S.W.3d at 38. Refusing to allow a defendant to ask a proper question constitutes an abuse of discretion. Sells, 121 S.W.3d at 756; Barajas, 93 S.W.3d at 38.
        A question is proper if it seeks to discover a juror's views on an issue applicable to the case. Sells, 121 S.W.3d at 756; Barajas, 93 S.W.3d at 38. However, an otherwise proper question is impermissible if the question attempts to commit the juror to a particular verdict based on particular facts. Sells, 121 S.W.3d at 756; Barajas, 93 S.W.3d at 38; Standefer v. State, 59 S.W.3d 177, 181 (Tex. Crim. App. 2001). Moreover, a trial judge may prohibit as improper a voir dire question that is so vague or broad in nature as to constitute a “global fishing expedition.” Sells, 121 S.W.3d at 756; Barajas, 93 S.W.3d at 38. To preserve error, an appellant must show he was prevented from asking particular questions that were proper. Sells, 121 S.W.3d at 756. “That the trial court generally disapproved of an area of inquiry from which proper questions could have been formulated is not enough because the trial court might have allowed the proper question had it been submitted for the court's consideration.” Id.
        On the morning of jury selection, the Dallas Morning News published an article discussing eyewitness identification and pointing out, among other things, “that Dallas leads the nation in wrongful ID convictions.” Prior to the start of voir dire, the trial court granted the State's motion in limine and concluded that defense counsel could not ask the jurors about the article. Citing the newspaper article, counsel subsequently renewed his objection and asked the trial court's permission to voir dire the jury concerning the newspaper article and “problems with eyewitness testimony.” The trial court concluded that defense counsel could ask the jurors whether they “read the paper this morning” but could not “get into” the newspaper article.
        We conclude appellant's argument that the trial judge unfairly prevented him from asking prospective jurors about the newspaper article has not been preserved for appellate review. The record in this case does not tell us what questions appellant would have asked. Without knowing the specific questions appellant would have asked, we have no way of determining whether the trial court abused its discretion. See Sells, 121 S.W.3d at 756 (citing Tex. R. App. P. 33.1(a)(1)(A)). Furthermore, even if appellant preserved this issue for review, the trial court's ruling only prevented appellant from discussing the Dallas Morning News article. It did not prevent him from asking other questions regarding the reliability of eyewitness testimony without mentioning the newspaper article. Therefore, the trial court did not abuse its discretion.
        As part of his first issue, appellant also argues that the trial court abused its discretion by sustaining the State's objection to a question posed by defense counsel during voir dire concerning ballistics evidence. The State responds that the trial court properly restricted defense counsel's question because it was an improper commitment question.
        According to the record, defense counsel was discussing the ballistics evidence gathered by the police. The relevant portion of the record reads as follows:
 
[DEFENSE COUNSEL]: . . . . Now, what I want to offer to you is, is there any of you that have problems with the idea of taking ballistics and if the police tell you that this is what happened, and it's different from the testimony from the witness stand, do any of you have trouble with the idea--
 
 
 
[PROSECUTOR]: Judge, I'm going to object to him committing them to a certain set of facts, again.
 
 
 
THE COURT: Sustained. Let's not talk about--
 
 
 
[PROSECUTOR]: He's talking about facts in this case that may pop up that are not relevant in voir dire.
 
 
 
THE COURT: Let's not commit the jurors to a certain set of facts. Let's talk in generalities.
 
        An attorney cannot attempt to bind or commit a prospective juror to a verdict based on a hypothetical set of facts. Standefer, 59 S.W.3d at 179. Commitment questions are those that commit a prospective juror to resolve, or to refrain from resolving, an issue in a certain way after learning a particular fact, and often ask for a “yes” or “no” answer. Id. An open-ended question can be a commitment question if the question asks the prospective juror to set the hypothetical parameters for his decision-making. Id. at 180. The purpose of prohibiting improper commitment questions is “to ensure that the jury will listen to the evidence with an open mind--a mind that is impartial and without bias or prejudice--and render a verdict based upon that evidence.” Sanchez v. State, 165 S.W.3d 707, 712 (Tex. Crim. App. 2005). However, not all commitment questions are improper. See Standefer, 59 S.W.3d at 181. To determine whether a proposed question impermissibly commits a prospective juror, we consider (1) whether the question is a “commitment question,” (2) whether the question would lead to a valid challenge for cause, and (3) whether the question adds facts beyond those necessary for a challenge for cause. See id. at 179-82.
        Appellant does not explain why his disallowed question was a proper subject for voir dire, apart from claiming he should have been permitted to inquire into the prospective jurors' unspecified biases. Applying the above principles, we conclude appellant's question was an improper commitment question because it asked the prospective jurors to commit themselves to finding or not finding reasonable doubt if there was a conflict between the ballistics evidence and unspecified witness testimony. See id. at 183 n.28 (“A party is not entitled to commit a juror on whether he can convict based on one witness nor is he entitled to commit a juror to a certain disposition if only circumstantial evidence is presented.”). Such a commitment is not required by law. The presence of an unresolved conflict in the testimony does not require a verdict of not guilty, and prospective jurors who could be convinced beyond a reasonable doubt even when confronted by an unresolved conflict are not challengeable for cause. Nor can prospective jurors be challenged for cause merely because their understanding of proof beyond a reasonable doubt would require a resolution of all conflicts in the testimony. See id. (noting that jurors are not subject to challenges for cause merely because they would require more evidence than the legal minimum). Moreover, appellant's question included more facts than necessary to raise a challenge for cause based on a prospective juror's bias or prejudice. Because defense counsel's question asked the jury panel for a commitment where one was not legally required, the trial court did not abuse its discretion when it sustained the State's objection. We overrule appellant's first issue.
        Jurisdiction
        In his second issue, appellant claims the trial court lacked jurisdiction because the record contains no order transferring the case from the 291st Judicial District Court to the Criminal District Court No. 2.
        After the State's opening statement but before the State called its first witness, appellant objected that the trial court lacked jurisdiction because there was no transfer order from the 291st Judicial District Court. The trial court overruled the objection. Appellant relied on article 4.16 of the code of criminal procedure to support his claim that Criminal District Court No. 2 lacked jurisdiction to hear the case and render judgment. Article 4.16 states: “When two or more courts have concurrent jurisdiction of any criminal offense, the court in which an indictment or a complaint shall first be filed shall retain jurisdiction. . . .” Tex. Code Crim Proc. Ann. art. 4.16 (Vernon 2005).
        The record shows that the 291st Judicial District Court presided over the grand jury that returned the murder indictment. See Bourque v. State, 156 S.W.3d 675, 678 (Tex. App.-Dallas 2005, pet. ref'd) (explaining grand jury process). But while any district court may empanel a grand jury, all cases returned by that grand jury are not necessarily assigned to that court. See id. The murder case was never filed in the 291st Judicial District Court. Following the return of the indictment, the murder case was filed in Criminal District Court No. 2 and all subsequent proceedings were held in that court. No transfer order is required when one court empanels the grand jury that returns the indictment but the case is actually filed in another court. See id. Because the murder case was filed in Criminal District Court No. 2, no transfer order from the 291st Judicial District Court was required. See id. We therefore overrule appellant's second issue.
        Extraneous Offense
        In his third issue, appellant argues that the trial court abused its discretion in admitting extraneous offense evidence.   See Footnote 4 
        Before trial, the State provided notice of its intent to offer extraneous offense evidence that on or about July 17, 2006, appellant evaded arrest “and was in possession of methamphetamine, marijuana, and a firearm in Dallas County, Texas.” During the guilt/innocence phase of the trial, Brian Tabor, a Dallas police officer assigned to the U.S. Marshall's Task Force, testified that he assisted the Dallas Police Department's gang unit in locating appellant after a warrant was issued for his arrest in March 2006 for the offense of murder. After “hundreds of hours of surveillance on different locations,” officers received information that appellant “was at an apartment off of Preakness in Dallas.” During their surveillance of the apartment, officers saw appellant, his girlfriend Valerie, another woman, and a three-year-old child leave the apartment and get into a vehicle. Valerie was carrying a backpack.
        A Dallas Police Department patrol unit followed the vehicle after it left the apartment complex. Attempting to perform a traffic stop, the patrol officers activated their emergency lights and siren, but the vehicle continued to move slowly for approximately half a mile. When it suddenly stopped after driving by Arcadia Park, appellant “jumped out of the passenger's side” of the vehicle and fled on foot. Appellant was apprehended after he jumped into a ravine and broke his leg. A search of the vehicle revealed a large quantity of methamphetamines and marijuana. The backpack contained a loaded 9 mm handgun and $19,000. Appellant was not charged with possessing the contraband found in the vehicle.         Before Tabor testified, appellant objected outside the presence of the jury that Tabor's testimony was extraneous offense evidence and that it did not “offer any evidence as to this offense.” Appellant also argued that the “prejudicial value just snares the defendant without assisting the jury in determining any facts at issue here.” The trial court overruled the objection. When the State asked Tabor whether there was “a large quantity of drugs” in the vehicle, appellant renewed his objection and argued the evidence was collateral and that it was “so far remote to timeliness to the commission of this offense to have no evidentiary value.” The trial court again overruled the objection.
        The admission of extraneous offenses is reviewed for abuse of discretion. Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim. App. 1996). Thus, we must uphold the trial court's decision to admit the evidence as long as it falls within the zone of reasonable disagreement. Wheeler v. State, 67 S.W.3d 879, 889 (Tex. Crim. App. 2002); Montgomery v. State, 810 S.W.2d 372, 391-92 (Tex. Crim.. App. 1991).
        Even if the trial court abused its discretion in admitting extraneous offense evidence that, immediately before his arrest, appellant was a passenger in a vehicle that contained a loaded 9 mm handgun, $19,000 cash, and methamphetamines and marijuana, the error was harmless. For purposes of analysis, we will therefore assume error in the admission of the extraneous offense and address appellant's contention that the error was harmful.
        Rule 44.2(b) of the Texas Rules of Appellate Procedure provides that any nonconstitutional error that does not affect substantial rights must be disregarded. See Tex. R. App. P. 44.2(b). The erroneous admission of an extraneous offense is nonconstitutional error. Johnson v. State, 84 S.W.3d 726, 729 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd); Avila v. State, 18 S.W.3d 736, 741-42 (Tex. App.-San Antonio 2000, no pet.). Substantial rights are not affected by the erroneous admission of evidence “if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect.” Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).
        In conducting the harm analysis, an appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the trial court's instructions to the jury, the State's theory, any defensive theories, closing arguments, and even voir dire if material to the appellant's claim. Motilla, 78 S.W.3d at 355-56; Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). In assessing harm, the factors to be considered are the nature of the evidence supporting the verdict, the character of the alleged error, and how the evidence might be considered in connection with the other evidence in the case. Motilla, 78 S.W.3d at 355; Morales, 32 S.W.3d at 867. Whether the State emphasized the error can be a factor. Motilla, 78 S.W.3d at 356. In evaluating the harmlessness of an error, we may also factor in the presence of overwhelming evidence supporting the judgment. See id. at 357-58.
        In this case, appellant does not challenge on appeal the legal or factual sufficiency of the evidence. The evidence shows that appellant and his co-defendants planned and arranged a gun sale in order to lure the victim, Kaylon Davis, to a prearranged location because Davis had previously robbed appellant of approximately nine pounds of marijuana. According to the testimony of Humberto Martinez, who arranged the gun sale, appellant, Humberto, Victor Pena, and five other individuals met in a field a short distance from the prearranged location and distributed an arsenal of weapons, including AK-47 assault rifles, a shotgun, an SKS assault rifle, and a 9 mm handgun. A few seconds after Humberto gave a prearranged signal that Davis was present, the men arrived in two vehicles and opened fire on Davis's vehicle. According to the ballistics evidence, over sixty-nine rounds were fired from three different rifles. Pena claimed he saw appellant shooting “a long gun” that “looked like an M16” towards Davis's vehicle. Because so much of the gunfire was aimed “low” at Davis's vehicle, appellant's theory at trial was that appellant and his co-defendants were only attempting to disable the vehicle in order to recover the stolen marijuana. Appellant also argued that the fatal shot to the victim's head was fired by someone inside Davis's vehicle.
        Two other factors also weigh in favor of concluding that the trial court's error, if any, was harmless. Tabor's testimony takes up only seven out of nearly 400 pages of testimony in the guilt/innocence phase of the trial. In addition, the State did not even mention the extraneous offense evidence during its closing argument in the guilt/innocence phase of the trial.   See Footnote 5 
        After reviewing the record, we have a fair assurance that the evidence in question did not influence the jury or had but slight effect. Accordingly, we conclude any error in admitting this evidence was harmless. We therefore overrule appellant's third issue.
        Jury Charge
        In his fourth issue, appellant argues that the trial court erred in denying his nine requested jury instructions on accomplice testimony, mistake, accident, self-defense, and “the lesser included offense of reckless conduct.”   See Footnote 6 
        In evaluating alleged jury charge error, we first determine whether error occurred and then determine whether the error caused sufficient harm to warrant reversal of the conviction. Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex. Crim. App. 1994) (en banc). In cases where the defendant timely objected to the charge error, we reverse the conviction if the defendant suffered some actual harm as a result of the error. Id. at 732; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g). In evaluating whether the defendant suffered some actual harm, we consider the entire jury charge as given, the evidence, counsel's arguments, and any other relevant information in the record. Almanza, 686 S.W.2d at 171.
        The indictment in this case charged appellant with intentionally or knowingly causing Kaylon Davis's death or intending to cause serious bodily injury and committing an act clearly dangerous to human life by shooting Davis with a firearm and causing his death. The court's charge instructed the jury on the law of parties. It also instructed the jury on the law of accomplices and that Victor Pena and Humberto Martinez were accomplices.
        Proposed Jury Instructions One, Four, and Five
        Appellant's first, fourth, and fifth proposed jury instructions concerned the accomplice witness testimony of Victor Pena and Humberto Martinez. Pena and Martinez were both charged with offenses arising from the murder of Kaylon Davis and testified against appellant.
        The record contains an extended discussion between counsel for both parties and the trial court regarding the accomplice witness instruction. During this discussion, defense counsel reminded the trial judge that he had submitted a proposed charge. Toward the end of the discussion, counsel stated that he did not “have any objection to the charge if” the court was “going to allow the accomplice witness testimony in,” but counsel argued “that the Government did not offer sufficient evidence to corroborate the accomplice witness [testimony]
of either Humberto Martinez or Victor Pena.”
        Although appellant broadly claims in his appellate brief that his nine proposed jury instructions were improperly denied by the trial court, he does not argue that the trial court erred in rejecting his proposed language on the accomplice witness instruction concerning Victor Pena and Humberto Martinez. Moreover, appellant does not tell us why the language in the trial court's accomplice witness instruction was improper. Apart from baldly asserting that the trial court erred in denying all nine proposed instructions, appellant does not mention the proposed accomplice witness instructions or provide any substantive legal arguments or analysis.
        This Court is under no obligation to make appellant's arguments for him. Therefore, we conclude that the portion of appellant's fourth issue concerning the first, fourth, and fifth proposed jury instructions is inadequately briefed and presents nothing for review. See Tex. R. App. P. 38.1(h)
(brief to this Court must contain “a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”); see also Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000); Rocha v. State, 16 S.W.3d 1, 20 (Tex. Crim. App. 2000); Patterson v. State, 138 S.W.3d 643, 649 (Tex. App.-Dallas 2004, no pet.); Billy v. State, 77 S.W.3d 427, 429 (Tex. App.-Dallas 2002, pet. ref'd).
        Proposed Jury Instructions Three and Six
        Appellant's third and sixth proposed instructions would have instructed the jury that Thomas Hernandez and Ruben Juarez, two of the State's witnesses, were accomplices. Appellant claims that the evidence raised the issue of whether Hernandez or Juarez shot Davis from inside the vehicle. Thus, the trial court should have instructed the jury on whether Hernandez or Juarez was an accomplice.
        An accomplice is an individual who participates with a defendant before, during, or after the commission of the crimes and acts with the requisite culpable mental state. Cocke v. State, 201 S.W.3d 744, 748 (Tex. Crim. App. 2006). Participation requires an affirmative act or omission that promotes the commission of the offense with which the defendant is charged. Id. An individual is clearly an accomplice if he, like the defendant, could be prosecuted for the offense or a lesser offense. Id.; Blake v. State, 971 S.W.2d 451, 455 (Tex. Crim. App. 1998). There must exist evidence sufficient to connect the alleged accomplice to the criminal offense as a “blameworthy participant,” but whether the alleged accomplice witness is actually charged or prosecuted is irrelevant. Cocke, 201 S.W.3d at 748; Blake, 971 S.W.2d at 455. Mere presence at a crime scene does not make an individual an accomplice, nor is an individual an accomplice merely because he has knowledge about a crime and fails to disclose that knowledge. Cocke, 201 S.W.3d at 748; Blake, 971 S.W.2d at 454.
        In the present case, the evidence shows that Hernandez and Juarez were passengers in Davis's vehicle. According to the record, Hernandez was sitting in the front passenger seat of Davis's vehicle and fled soon after the shooting started. Juarez was a rear seat passenger. There is no evidence suggesting they were aware that appellant and his co-defendants planned to ambush Davis, nor does the record suggest that Hernandez and Juarez participated either before, during, or after the offense as a party to the murder. As mentioned before, a person who is merely present at the scene of a crime or who has knowledge of a crime and fails to disclose it is not considered an accomplice. See Cocke, 201 S.W.3d at 748. Accordingly, the trial court did not err in refusing to submit the proposed jury instructions. Because the trial court did not err, we do not reach the issue of harm.
        Proposed Jury Instruction Two, Seven, Eight, and Nine
        Appellant's second proposed instruction would have instructed the jury that if Hernandez or Juarez were acting in self-defense and “accidentally hit and killed” Davis without intending to cause any harm to him, then appellant was guilty of no offense and the jurors should find him not guilty. Appellant's seventh proposed instruction would have instructed the jury that if it found appellant pointed a gun in the direction of Davis and shot near him but only intended to scare him, the jury must acquit appellant of murder and consider only whether he is guilty of “reckless conduct.” The eighth proposed instruction would have instructed the jury that if Hernandez and Juarez accidentally shot and killed Davis, and Davis's death was not due to the voluntary act or conduct of appellant, then the jurors should find appellant not guilty. Appellant's ninth proposed instruction would have instructed the jury that if Juarez and Hernandez were responsible for the death of Davis but the shooting was the result of an accidental discharge of the gun and not due to the voluntary act or conduct of appellant, the jurors should find appellant not guilty.
        We conclude appellant has not presented clear and concise arguments as to why he was entitled to jury instructions on self-defense, “accident or mistake,” or “the lesser included offense of reckless conduct.” See Tex. R. App. P. 38.1(h). Appellant offers no legal authority indicating why he was entitled to the proposed instructions, and he fails to address the questions of whether the alleged errors in failing to include his requested instructions resulted in any harm. Therefore, this portion of appellant's fourth issue is inadequately briefed and presents nothing for review. See Cardenas, 30 S.W.3d at 393 (appellant failed to adequately brief points of error regarding omission of instructions in jury charge). Accordingly, we resolve appellant's fourth issue against him.
        We affirm the trial court's judgments.
 
 
                                                          
                                                          AMOS L. MAZZANT
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
070345F.U05
 
Footnote 1 F06-63781-UI (appeal number 05-07-00346-CR)
Footnote 2 F04-57894-I (appeal number 05-07-00345-CR).
Footnote 3 Although appellant's first issue is arguably multifarious, we will, in the interest of justice, address the issues raised. See Sterling v. State, 800 S.W.2d 513, 521 (Tex. Crim. App. 1990).
Footnote 4 Since Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon 2006) provides that extraneous offenses are admissible for punishment, we construe appellant's brief to complain about the admission of extraneous offenses during the guilt/innocence phase of the trial.
Footnote 5 Appellant points to the State's closing argument during the punishment phase of the trial, which briefly referred to the “meth, cash and guns” that were found on him at the time of his arrest, to support his argument that he was harmed. However, the State's punishment argument is irrelevant to our determination of whether evidence admitted during the guilt/innocence phase of the trial was harmful.
Footnote 6 Although appellant's brief is not entirely clear on this point, we assume he is referring to felony deadly conduct under section 22.05(b) of the penal code. See Tex. Penal Code Ann. § 22.05(b) (Vernon 2003). Prior to 1994, deadly conduct was known as “reckless conduct.” See Guzman v. State, 188 S.W.3d 185, 196 n.8 (Tex. Crim. App. 2006).