MCCALL, BRANDON DE v. the State of Texas

In the Court of Criminal

Appeals of Texas

══════════

No. AP-77,095

══════════

BRANDON DE McCALL,

Appellant

v.

THE STATE OF TEXAS

═══════════════════════════════════════

On Direct Appeal from Cause No. 296-81183-2018

In the 296th District Court

Collin County

═══════════════════════════════════════

YEARY, J., delivered the opinion or a unanimous Court.

In February of 2020, a jury convicted Appellant of capital murder

for fatally shooting a peace officer who was acting in the lawful

discharge of an official duty. See TEX. PENAL CODE § 19.03(a)(1). Based

McCALL – 2

on the jury’s answers to the special issues set forth in Texas Code of

Criminal Procedure Article 37.071, Sections 2(b) and 2(e), the trial court

sentenced Appellant to death. See TEX. CODE CRIM. PROC. art. 37.071 §

2(g). 1 Direct appeal to this Court is automatic. Id. art. 37.071 § 2(h).

Appellant raises nine points of error. 2 Having found no reversible error

as to any of Appellant’s points of error, we affirm the judgment of

conviction and sentence of death.

I. BACKGROUND

In February of 2018, Richardson Police Department officers

responded to a “shots-fired” call at an apartment complex. When the

officers arrived, they found Rene Gamez lying in a pool of blood outside

his apartment. Gamez had a gunshot wound to his lower leg and was

breathing shallowly. At that time, the officers did not know who or

where the shooter was or whether there were any additional victims

inside Gamez’s apartment.

Believing others might be in jeopardy, the officers forced their

way into the apartment. After kicking open the door, seven officers

entered the apartment and announced themselves as police. The victim,

officer David Sherrard, went in first.

As the group moved into the apartment, Appellant fired multiple

rifle rounds from a back bedroom. Sherrard was struck twice. He

announced that he was “hit” and exited the apartment.

1 Unless otherwise indicated, all subsequent citations in this opinion to

“Articles” refer to the Texas Code of Criminal Procedure.

2 Points of error four and five reference arguments raised in other points

of error and will be addressed together at the end of the opinion.

McCALL – 3

Once outside, Sherrard collapsed. He was attended to by

paramedics on the scene and taken to a trauma unit, but he was later

pronounced dead. Appellant was then tried and convicted of capital

murder for Sherrard’s death.

II. CHALLENGES FOR CAUSE

In his first three points of error, Appellant argues that the trial

court erroneously denied four of the defense’s challenges for cause and

erroneously granted one of the State’s challenges for cause.

A venire person is challengeable for cause if he or she has a bias

or prejudice against the law upon which either party is entitled to rely.

Buntion v. State, 482 S.W.3d 58, 83−84 (Tex. Crim. App. 2016) (citing

TEX. CODE CRIM. PROC. art. 35.16 §§ (a)(9), (c)(2)). The test is whether

the bias or prejudice would substantially impair the venire person’s

ability to perform his duties in accordance with the court’s instructions

and the juror’s oath. Id. at 84. Before a venire person can be excused for

cause on this basis, the law must be explained to him, and he must be

asked whether he can follow that law regardless of his personal views.

Tracy v. State, 597 S.W.3d 502, 512 (Tex. Crim. App. 2020). The party

challenging a venire person bears the burden to establish that the

challenge is proper, and he does not meet this burden until he has shown

that the venire person understood the requirements of the law and could

not overcome his prejudice well enough to follow the law. Id. But a venire

person’s bias need not be proven with “unmistakable clarity” because

sometimes a venire person simply cannot be asked enough questions to

reach a point where his bias has been made “unmistakably clear.”

Buntion, 482 S.W.3d at 84 (quoting Wainwright v. Witt, 469 U.S. 412,

McCALL – 4

424−25 (1985)).

When assessing a trial court’s denial of a challenge for cause, we

review the entire record to determine whether sufficient evidence exists

to support the court’s ruling. Davis v. State, 329 S.W.3d 798, 807 (Tex.

Crim. App. 2010). We reverse only for a clear abuse of discretion. Id.

Because the trial judge is in the best position to evaluate a venire

person’s demeanor and responses, we review a trial court’s ruling on a

challenge for cause with considerable deference. See Tracy, 597 S.W.3d

at 512.

A. Appellant’s Challenges for Cause

In point of error one, Appellant argues that the trial court erred

in denying challenges for cause to four venire persons: Richard

Davidson; Steven Brasher; Gregory Ashcraft; and David Rogers. He

contends that the denials resulted in a jury that was biased or

prejudiced and therefore deprived him of a fair trial in violation of the

Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States

Constitution.

To establish reversible error for the erroneous denial of a

challenge for cause, a defendant must show on the record that: (1) he

asserted a clear and specific challenge for cause; (2) he used a

peremptory challenge on the complained-of venire person; (3) his

peremptory challenges were exhausted; (4) his request for additional

peremptory strikes was denied; and (5) an objectionable juror sat on the

jury. Comeaux v. State, 445 S.W.3d 745, 749 (Tex. Crim. App. 2014). By

following these steps, “the defendant shows that he actually needed the

peremptory strike that he was forced to use on a biased juror.” Id. at

McCALL – 5

750. 3 In other words, a defendant is harmed if he is compelled to use one

of his peremptory challenges to make up for the trial court’s error in

failing to grant his proper challenge for cause, since “a peremptory

challenge was wrongfully taken from” him. Newbury v. State, 135

S.W.3d 22, 30–31 (Tex. Crim. App. 2004) (citing Martinez v. State, 763

S.W.2d 413, 415 (Tex. Crim. App. 1988)).

When the record shows that the trial court granted the

defendant’s requests for additional peremptory strikes, the defendant

must also show that at least one more challenge for cause was

erroneously denied than the number of additional peremptory

challenges he was allotted. See Mason v. State, 905 S.W.2d 570, 578

(Tex. Crim. App. 1995) (“[B]ecause appellant was granted three

additional peremptory strikes, he did not suffer the loss of three strikes.

Therefore, for appellant to demonstrate harm and, hence, reversible

error, he must show that challenges for cause on at least four

venirepersons were erroneously denied.”). Only then has the appellant

shown that he has been wrongfully deprived of a peremptory challenge.

If a defendant fails to make this showing, he fails to show harm, and his

complaint should be overruled for that reason. See id.

In this case, Appellant raised challenges for cause against

Davidson, Brasher, Ashcraft, and Rogers. When those challenges were

denied, Appellant exercised peremptory strikes against them.

3 In a criminal trial, “[p]eremptory [challenges] are given to each side to

use as they see fit.” Comeaux, 445 S.W.3d at 749. Except for prohibited reasons

such as race or sex, a “defendant may use those [peremptory challenges] to

remove any member of the venire panel for any reason” or even for “no reason

at all.” Id.; TEX. CODE CRIM. PROC. art. 35.14 (“A peremptory challenge is made

to a juror without assigning any reason therefor.”).

McCALL – 6

Ultimately, the defense used all fifteen of its originally allotted

peremptory strikes. Appellant then sought three additional strikes, two

of which were granted and exercised against venire persons Jennifer

Dominguez and David Hunter.

The trial court denied Appellant’s request for an eighteenth

peremptory challenge. As a result, Julie Meredith, a juror Appellant

identified as unacceptable to him, was seated as his twelfth juror. But

because the trial court had granted Appellant two additional

peremptory challenges, he cannot show that he was harmed unless he

can demonstrate that the trial court erred in denying at least three of

his challenges for cause. See Newbury v. State, 135 S.W.3d 22, 30–31

(Tex. Crim. App. 2004) (citing Martinez v. State, 763 S.W.2d 413, 415

(Tex. Crim. App. 1988)); Mason, 905 S.W.2d at 578.

1. Davidson

Appellant first argues that Davidson was challengeable for cause

because he “would have voted for the death penalty automatically.” See

Ladd v. State, 3 S.W.3d 547, 558–59 (Tex. Crim. App. 1999) (stating that

a venire person is challengeable for cause where he would automatically

answer the special issues in such a way that the death penalty would be

assessed); see also Banda v. State, 890 S.W.2d 42, 57 (Tex. Crim. App.

1994). Appellant emphasizes an exchange in which defense counsel and

Davidson discussed a hypothetical scenario involving a defendant found

guilty of capital murder for killing a police officer with no applicable

legal justification:

Q: So once you find that scenario to be the facts of the

case, that’s why you -- that’s what leads you to say that

that’s a person that deserves the death penalty. That type

McCALL – 7

of basic straightforward, intentional and knowing killing of

a police officer, knowing that they are a police officer, no

defenses, no self-defense, no defense of third person, no

accident, no mistake, no mistake of fact, no duress, not

insane at the time of the offense; none of that stuff. There

is none of that stuff. Do you believe the death penalty is the

appropriate punishment for that individual that’s found

guilty of that crime?

A: Yes, sir.

Q: Okay. And that answers Special Issue 1 for you?

A: Correct.

Q: And then when you get to Special Issue #2, the

person[’]s age, that’s not going to be a mitigating factor

under those circumstances for you, is it?

A: No.

Q: All right. Their upbringing, that’s not really going to

be a mitigating factor, is it?

A: No, sir.

Q: There -- there is really not much that cuts for you as

far as something that might be considered mitigating, is

there?

A: Probably not. Like I said, it would all depend on the

circumstances of the event.

To the extent that this exchange suggested that Davidson would give an

automatic response, the rest of his voir dire demonstrates otherwise.

Throughout questioning by the State and the defense, Davidson

repeatedly stated that he would need to know the facts of the particular

McCALL – 8

case before answering the special issues. When questioned by the State,

Davidson agreed that he could keep an open mind in the punishment

phase of trial and not answer either special issue automatically. He also

agreed that he would need to hear “all the circumstances” in order to

resolve the special issues and that he could look at all of the evidence

with a fresh set of eyes in the punishment phase if he found somebody

guilty of capital murder.

When questioning Davidson, defense counsel asked whether a

person who commits capital murder would likely commit criminal acts

of violence in the future. Davidson responded, “Probably. But like I said

before, it would be what–what was the event; you know, what was the

cause.” Davidson later reiterated that his answers to the special issues

“would depend on the circumstances of what was leading up to [the

offense].” His responses as a whole reflect his understanding that the

resolution of one special issue would not automatically resolve another.

The record supports the trial court’s determination that Davidson was

not removable for cause because he would not automatically resolve the

special issues. See Ladd, 3 S.W.3d at 558–59.

Appellant next contends that Davidson should have been

removed for cause because he could not properly consider mitigation

evidence. Under Article 37.071, if the jury returns an affirmative answer

to the future-dangerousness special issue, then it must answer the

following mitigation special issue:

Whether, taking into consideration all of the

evidence, including the circumstances of the offense, the

defendant’s character and background, and the personal

moral culpability of the defendant, there is a sufficient

mitigating circumstance or circumstances to warrant that

McCALL – 9

a sentence of life imprisonment without parole rather than

a death sentence be imposed.

TEX. CODE CRIM. PROC. art. 37.071 § 2(e)(1) (emphasis added). Appellant

asserts that Davidson could not consider the defendant’s character and

background in answering the mitigation special issue. See Maldonado

v. State, 998 S.W.2d 239, 250 (Tex. Crim. App. 1999) (“[J]urors must be

willing to at least consider the defendant’s background and character . .

. although they need not give mitigating weight to any particular type of

evidence.”). Appellant emphasizes the following exchange:

Q: [T]he Defendant’s background, upbringing,

youth, level of intelligence, maybe, that kind of thing, that

really doesn’t come into play --

A: No, sir.

Q: -- as far as being mitigating for you?

A: No, sir.

The record does not reflect that either party explained that the

law would require Davidson to consider character and background

evidence in analyzing the mitigation special issue. Therefore, Appellant

has not shown that Davidson understood the law and could not overcome

his prejudice well enough to follow it. See Tracy, 597 S.W.3d at 512.

Moreover, while Davidson’s responses indicated that he did not give

much weight to certain types of mitigation evidence, the law does not

require a juror to consider any particular piece of evidence to be

mitigating. Hernandez v. State, 390 S.W.3d 310, 315 (Tex. Crim. App.

2012).

Additionally, the record reflects that Davidson did not dismiss all

McCALL – 10

character and background evidence out of hand. When questioned by the

State, Davidson gave examples of evidence that he might consider

mitigating. He further explained that he would be open to listening to

the reasoning of other jurors with regard to the mitigation special issue.

Overall, the record supports the trial court’s determination that

Davidson was not mitigation impaired.

Finally, Appellant contends that Davidson should have been

removed for cause because he would not impartially assess witness

credibility. A venire person is challengeable for cause under Article

35.16, Section (a)(9), if he cannot impartially judge the credibility of

witnesses. Feldman v. State, 71 S.W.3d 738, 745 (Tex. Crim. App. 2002).

However, a venire person is not challengeable for cause simply because

he would slightly favor certain classes of witnesses, such as police

officers and doctors, when deciding credibility, because “complete

impartiality cannot be realized as long as human beings are called upon

to be jurors.” Jones v. State, 982 S.W.2d 386, 389 (Tex. Crim. App. 1998);

see also Ladd, 3 S.W.3d at 560. Before a venire person can be excused

for cause, the proponent of the challenge must show that the venire

person expressed an extreme or absolute position on the credibility of

witnesses and was not open-minded and persuadable. Feldman, 71

S.W.3d at 747; Jones, 982 S.W.2d at 389.

Davidson indicated on his juror questionnaire that he thought

police officers were more likely to tell the truth than the average person.

Under further examination, he agreed that, generally speaking, he

would be inclined to give police officers credibility over other individuals.

But he concluded that, while he would give police officers the benefit of

McCALL – 11

the doubt, “if what they are saying doesn’t match up to what looks like

really happened, then I think I would be able to determine that.” As a

whole, Davidson’s testimony reflected that he was persuadable, was

open to questioning police testimony, and did not hold an absolute view

on police officers’ credibility. See Feldman, 71 S.W.3d at 747.

Looking at the totality of Davidson’s questioning, we conclude

that the trial court did not abuse its discretion by overruling Appellant’s

challenge for cause to Davidson.

2. Brasher

Appellant contends that the trial court erred in denying his

challenge to venire person Brasher because Brasher’s testimony

reflected that he would lower the State’s burden of proof on the future-

dangerousness special issue. To answer the future-dangerousness

special issue “yes,” the jury must find beyond a reasonable doubt that

“there is a probability that the defendant would commit criminal acts of

violence that would constitute a continuing threat to society.” TEX. CODE

CRIM. PROC. art. 37.071 § 2(b)(1). Appellant argues that the term

“probability” is not statutorily defined but is to be taken and understood

under its common meaning. See Hughes v. State, 878 S.W.2d 142, 147–

48 (Tex. Crim. App. 1992) (op. on orig. sub.). He asserts that this Court

has recognized that the common meaning of the term requires

something “more than a mere possibility” or something “more than a

bare chance.” Id. at 148. Appellant complains that Brasher consistently

stated that probability—in the context of the future-dangerousness

special issue—meant only a bare chance that something would happen.

He points to the following exchange with defense counsel:

McCALL – 12

Q: [W]hat do you think we mean by probability?

A: Probability is a chance that it could happen.

Q: Is probability a chance?

A: That’s -- yes, probability is a chance that it could

happen.

Q: Do you understand that the legislature, when

they wrote [the future-dangerousness special issue], they

could have used any word they wanted there. They could

have put possibility, they could have put maybe, they could

have put a chance, but they used the term “probability.”

Would you agree with me that probability means more

likely than not?

A: Might. But I’ll stick to what I said, that

probability is a chance.

Q: Do you think that a probability -- after looking at

it, do you think that probability would exist, that there is

ever a chance that something could happen, then that’s a

probability to you?

A: I am still going to say probability means there is

a chance.

Q: Would you agree that there is a chance that any

of us could be a future danger?

A: Yes.

Q: So if your definition of probability is chance,

wouldn’t that lead you to find that anybody that is

convicted of capital murder would be likely to commit

future acts of violence?

A: I am just going to stick with what my --

McCALL – 13

probability is a chance.

Appellant concludes that Brasher’s definition would lower the State’s

burden of proof on the future-dangerousness special issue.

However, defense counsel did not instruct Brasher that the law

required him to accept that “probability,” for the purposes of the future-

dangerousness special issue, meant something more than a bare chance.

Counsel merely asked Brasher his personal definition of “probability,”

and Brasher answered without the benefit of a legal explanation.

Because Brasher was not instructed on the law, Appellant has not

shown that the trial court abused its discretion by denying Appellant’s

challenge for cause to Brasher on this basis. See Tracy, 597 S.W.3d at

512.

Appellant also asserts that Brasher should have been removed for

cause because he could not consider mitigation evidence as required by

the mitigation special issue. In his juror questionnaire, Brasher

indicated that characteristics like genetics, circumstances of birth,

upbringing, and environment should not be a consideration in

determining punishment. He identified these traits as “excuses for why

me.” When the prosecutor questioned Brasher about his response, he

elaborated: “Why is someone blaming every other thing for their

situation and not taking ownership of the consequences.” Appellant

contends that this exchange showed that Brasher was incapable of

considering any mitigation evidence and should have been disqualified.

See Morgan v. Illinois, 504 U.S. 719, 739 (1992) (holding that jurors who

consider mitigating factors irrelevant should be disqualified for cause).

Appellant relies on an exchange that occurred before the law was

McCALL – 14

explained to Brasher. The State subsequently explained that jurors

were required to consider mitigation evidence and again asked him if he

would be able to consider such evidence:

Q: [I]f you have already found somebody guilty,

[and] you have already found that they are a future threat,

can you still give consideration to whatever it is you hear

with the possibility that it may make a difference?

A: I would still, based on the facts that were given

and based on what the law is that I am supposed to follow,

that would be my decision.

Brasher repeated this sentiment in a later exchange with defense

counsel:

Q: Do you think that there [are] things that you can

consider, like birth, upbringing and environment, things

like that, that you might consider if you were on a case like

this?

A: I have never thought about that until I’ve been

presented with that question right now. Is it something

that I could consider? Yes, I can consider it.

These exchanges demonstrate that, once the law was explained to

him, Brasher communicated that he could follow the law. As the

proponent of the challenge for cause, Appellant had the burden to show

that Brasher understood what the law required from him, but that he

would be unable to follow the law. Tracy, 597 S.W.3d at 512. The trial

court did not abuse its discretion to find that Appellant did not meet his

burden. Therefore, he has not shown that the trial court abused its

discretion by overruling the challenge for cause to Brasher.

3. No Harm Shown

McCALL – 15

As discussed above, because Appellant received two additional

peremptory strikes, he cannot demonstrate harm unless he shows that

the trial court erroneously denied at least three of his challenges for

cause. Newbury, 135 S.W.3d at 31. Appellant complains about the denial

of four challenges for cause. We have concluded that the trial court did

not err in the preceding two challenge-for-cause rulings. Accordingly,

even if we assume that the trial court erred in denying Appellant’s

challenges for cause to the two remaining venire persons at issue,

Appellant cannot show harm. See id. We overrule point of error one.

B. State’s Challenge for Cause

In his next two points of error, Appellant contends that the trial

court erroneously granted the State’s challenge for cause to venire

person Debra Solomon. 4

Under Article 35.16, Section (a)(9), the State may challenge a

venire person for cause if the person is biased or prejudiced in favor of

or against the defendant or against any of the applicable laws on which

the parties are entitled to rely. The test is whether the bias or prejudice

would substantially impair the venire person’s ability to carry out his

oath and follow instructions in accordance with the law. Tracy, 597

S.W.3d at 512. Before a venire person can be excused for cause, the law

must be explained to him, and he must be asked whether he can follow

that law regardless of his personal views. Id.

In her juror questionnaire, Solomon indicated that she would

need “one-hundred percent proof” in order to resolve the special issues

4 Appellant refers to the challenged venire person as “Soloman.”

However, the record uses the spelling “Solomon,” and this is how we will refer

to her in this opinion.

McCALL – 16

in such a way that resulted in the application of the death penalty. At

voir dire, both the prosecutor and defense counsel explained that the law

only required that the State prove its case beyond a reasonable doubt.

Once both parties explained the law, the trial court attempted to gauge

Solomon’s understanding of the burden of proof:

COURT: When the State is asking you whether or

not you are going to require a hundred percent, the real

question is do you understand what the definition of

reasonable doubt is to you.

[SOLOMON]: Well, I could give you a lot of different

scenarios and I’m sure you could to me. But to me, I mean,

the facts would just have to be without -- undisputable. I

mean, presented to you as though they are just -- there is

not a if[,] and, or a but. No question, no gray area. It would

have to definitely be something that they had proven that

-- I mean, you are not going to sentence anybody to death

because . . . there is some lack of guilt there that isn’t

covered.

The State challenged Solomon for cause on the basis that—by requiring

“undisputable,” one-hundred percent certainty—she would hold the

State to a higher burden of proof than required by law. The trial court

ruled as follows:

[T]he Court finds that the prospective juror would hold the

State to a higher burden; and, two, the Court is going to

find on its own this is a vacillating juror. She is all over the

place. She seems to be wanting to please the attorneys and

trying to figure out what you are really asking [her] . . . and

not actually the question before [her]. So for those reasons,

the Court grants the challenge for cause by the State.

In point of error three, Appellant argues that the trial court erred

McCALL – 17

in removing Solomon as a vacillating juror. 5 When a venire person’s

answers are vacillating, equivocating, ambiguous, unclear, or

contradictory, we afford particular deference to the trial court’s decision.

Tracy, 597 S.W.3d at 512. In an exchange with defense counsel, Solomon

agreed that she could follow the law and hold the State to the reasonable

doubt burden of proof. However, when the trial court attempted to

clarify Solomon’s understanding of the standard, she appeared to waver:

[COURT]: All right. What we are having

trouble with is we are not sure where you are in

regards to reasonable doubt when you say a

hundred percent or beyond a shadow of a doubt.

We don’t know if that’s the same thing or those

are different things for you, so tell us, if you can.

Are those different things?

[SOLOMON]: I never really gave that any

thought before. So in the last 15 seconds here, to

decide what the difference is between a

reasonable or a shadow of a doubt, I would think

that in the circumstances of guilty or not guilty,

that it would just be that it would either be -- to

me, it would have to be a hundred percent; or if it

was 95 and I -- that’s what you are saying, the

difference between a hundred reasonable and -- if

that’s it, or 95 being shadow of a doubt, if that’s

what you are -- something along that gray area

there? * * * I think that once -- if it is proven

beyond a reasonable doubt, to me a reasonable

doubt would be -- I mean, I guess if he is proving

beyond a reasonable doubt, then I would expect

5 Appellant asserts that the trial court erred in sua sponte raising

vacillation as a basis for removal. However, Appellant does not provide

argument in support of this assertion, so we will not address it. See TEX. R.

APP. P. 38.1(i).

McCALL – 18

that you would have that reasonable doubt there

or some evidence to counteract what he has

proven, and I feel that the person is guilty, then

can you prove that they are not after he has

proved that they are? I don’t know. I am not sure

what reasonable doubt here is coming down to.

When asked directly whether she would hold the State to a one-hundred

percent standard, Solomon responded, “I would need some very good

evidence, yes.” Then she concluded, “I think I would be tempted on the

hundred percent point.”

Here, the record indicates that Solomon ostensibly committed to

follow the reasonable doubt burden of proof. However, Solomon

consistently asserted that she intended to hold the State to a burden of

one-hundred percent certainty, indicating that she either

misunderstood the reasonable doubt standard or vacillated in her

commitment to follow it. Under these circumstances, the trial court

would not have abused its discretion by excusing Solomon on this

ground. Because the record supports the trial court’s removal of Solomon

on this basis, we cannot find that it erred in sustaining the State’s

challenge for cause to Solomon. We overrule point of error three.

In point of error two, Appellant asserts that the trial court erred

in granting the State’s challenge for cause because the law was not

properly explained to Solomon. He complains that the State’s

explanation of the burden of proof failed to distinguish “reasonable

doubt” from “possible doubt.” He further complains that the State

described the different standards of proof in terms of percentages (i.e.,

the reasonable doubt standard was described as “more than fifty percent

certainty” and the “beyond all possible doubt” standard was equated

McCALL – 19

with “one hundred percent certainty”). Appellant argues that this

language confused Solomon and diluted the State’s burden of proof.

Solomon herself introduced the percentage language when she

indicated on her juror questionnaire that she would need “one-hundred

percent proof” to impose the death penalty. The record reflects that both

parties and the trial court adopted percentage analogies to clarify her

response and to determine whether Solomon could apply the correct

burden of proof.

Further, the law on the reasonable doubt standard of proof was

properly explained to Solomon. Before the trial court questioned

Solomon, the defense explained that “[t]he State doesn’t have a burden

to prove anything beyond a shadow of a doubt or all possible doubt. It is

just beyond a reasonable doubt in a juror’s mind, and there is no

definition of reasonable doubt anymore in the State of Texas.” Because

the law was properly explained to Solomon, the State only needed to

show that she could not follow the law to establish that the challenge for

cause was proper. See Tracy, 597 S.W.3d at 512. As shown above,

Solomon either misunderstood the reasonable doubt standard or

vacillated in her ability to follow it. Therefore, the trial court did not err

in concluding that Solomon could not follow the law. We overrule point

of error two.

III. CONSTITUTIONAL CHALLENGES

In points of error six, seven, and nine, Appellant complains that

the Texas statutory death penalty scheme is unconstitutional both

facially and as applied.

A. Facial Challenge–Mitigating Evidence

McCALL – 20

In point of error six, Appellant asserts that the trial court erred

in failing to declare the Texas death penalty statute facially

unconstitutional for limiting the definition of “mitigating evidence” to

that which reduces a defendant’s “moral blameworthiness.” See TEX.

CODE CRIM. PROC. art. 37.071 § 2(f)(4). In a facial challenge like this

one, a claimant asserts that the complained-of law operates

unconstitutionally in all of its potential applications. See Estes v. State,

546 S.W.3d 691, 697–98 (Tex. Crim. App. 2018). Appellant raised this

facial constitutional challenge in a pretrial motion, which the trial court

denied.

With regard to the mitigation special issue, the trial court is

required to instruct the jury that mitigating evidence is “evidence that

a juror might regard as reducing the defendant’s moral

blameworthiness.” TEX. CODE CRIM. PROC. art. 37.071 § 2(f)(4).

Appellant contends that requiring mitigation evidence to reduce “moral

blameworthiness” creates a nexus between mitigating evidence and the

present offense because a typical jury would infer that

“blameworthiness” relates to culpability for the crime at hand. This

nexus, Appellant asserts, improperly limits the scope of mitigating

evidence and renders the statute unconstitutional under the Eighth

Amendment and Tennard v. Dretke, 542 U.S. 274, 284 (2004) (rejecting

the notion that proffered mitigation evidence must establish a nexus to

the crime in order to be relevant).

We have previously considered and rejected this same or similar

claims. See Hall v. State, 663 S.W.3d 15, 43 (Tex. Crim. App. 2021), cert.

denied, 143 S. Ct. 581 (2023); Coble v. State, 330 S.W.3d 253, 296 (Tex.

McCALL – 21

Crim. App. 2010). Appellant’s argument does not persuade us to revisit

these holdings. We overrule point of error six.

B. As Applied Challenge–Mitigating Evidence

In his seventh point of error, Appellant contends that Article

37.071, Section 2(f)(4), is also unconstitutional as applied. 6 In an as-

applied challenge, the claimant concedes the general constitutionality of

the statute but asserts that the statute is unconstitutional as applied to

his particular facts and circumstances. Estes, 546 S.W.3d at 698. In

reviewing the challenge, the Court begins with the presumption that the

Legislature acted both rationally and validly in enacting the law under

review. Id. In light of this presumption, the challenger bears the burden

of producing evidence specifically demonstrating that the law in

question is unconstitutional as applied to him. Id. That the law may be

unconstitutional as to a hypothetical third party is not sufficient or

relevant to the inquiry. See id. (citing State ex rel. Lykos v. Fine, 330

S.W.3d 904, 910 (Tex. Crim. App. 2011)).

Appellant contends that the voir dire testimony of venire persons

Gretchen Grese and Ryan Johnson showed that each inferred that

Article 37.071, Section 2(f)(4), required a nexus between mitigating

evidence and the present offense. He further argues that this inferred

nexus requirement would have caused the venire persons to ignore the

following character and background evidence: (1) testimony from

6 This provision reads: “The court shall charge the jury that in

answering [the mitigation special issue] submitted under Subsection (e) of this

article, the jury . . . shall consider mitigating evidence to be evidence that a

juror might regard as reducing the defendant’s moral blameworthiness.” TEX.

CODE CRIM. PROC. art. 37.071 § 2(f)(4).

McCALL – 22

Appellant’s former employers that they considered him non-violent,

polite, a hard-worker, and a nice person; (2) testimony from Appellant’s

friends that they had never known him to be violent or aggressive; and

(3) testimony from Appellant’s brother describing the siblings’ difficult

childhood. 7

There are two fundamental problems with Appellant’s as applied

challenge. First, Appellant relies on voir dire testimony that

encompassed only hypothetical applications of Article 37.071. At best,

this testimony showed how the individual venire persons would

approach mitigating evidence. It does not show that the statute itself

operated unconstitutionally as applied to Appellant’s facts and

circumstances. Second, at its core, the claim presents an attack on the

plain language of Article 37.071, Section 2(f)(4). By arguing that venire

persons Grese and Johnson would have applied a nexus requirement he

believes is inherent in Article 37.071, Section 2(f)(4), Appellant is

essentially just reasserting his facial constitutionality arguments that

the plain language of the statute creates a nexus requirement in

violation of the Eighth Amendment and Tennard. As discussed in the

analysis for point of error six, we have previously considered and

rejected the same or similar claims.

Appellant fails to show that the statute is unconstitutional as

applied to his particular facts and circumstances. We overrule point of

error seven.

7 The defense used a peremptory strike against venire person Grese,

and she was not seated on the jury. Therefore, her interpretation of Article

37.071 could not have affected the outcome of the case and any injury to

Appellant was purely hypothetical. See Lykos, 330 S.W.3d at 910.

McCALL – 23

C. Facial Challenge–Definitions of Terms

In point of error nine, Appellant complains that Article 37.071,

Section 2, is unconstitutional because it does not define the following

terms: “personal moral culpability,” “moral blameworthiness,”

“probability,” “criminal acts of violence,” “continuing threat to society,”

and “society.” Appellant raised these complaints in pretrial motions. The

trial court heard and overruled Appellant’s motions at a pretrial

hearing.

This Court has reviewed and rejected the same or similar claims

on several occasions. See, e.g., Jenkins v. State, 493 S.W.3d 583, 615

(Tex. Crim. App. 2016) (rejecting the need to define “probability,”

“criminal acts of violence,” and “continuing threat to society”); Coble, 330

S.W.3d at 297 (rejecting the need to define “probability,” “criminal acts

of violence,” and “society”); Davis v. State, 313 S.W.3d 317, 354–55 (Tex.

Crim. App. 2010) (rejecting the need to define “personal moral

culpability,” “moral blameworthiness,” and other terms). We decline to

revisit this issue, and we overrule point of error nine.

IV. VOIR DIRE LIMITATIONS

In point of error eight, Appellant complains that the trial court

improperly limited the defense’s voir dire questioning of venire persons,

as exemplified by the individual voir dire of venire persons Grese and

Johnson. Specifically, Appellant claims that the trial court “refused to

allow defense counsel to question prospective jurors [on] whether they

would consider defensive evidence offered in mitigation if that evidence

did not reduce the defendant’s ‘moral blameworthiness’ for the

commission of the offense.” (App. Br.: 70). Stating his claim another way,

McCALL – 24

Appellant argues that the trial court’s rulings “prohibited the defense

from conducting voir dire questioning to determine whether the jurors

could consider mitigating evidence proffered by the defense that did not

reduce the defendant’s ‘moral blameworthiness’ for the commission of

the offense.” (App. Br.: 74). He contends that the trial court’s actions

violated his right to conduct “meaningful voir dire” as required by “the

Supreme Court’s rule in Morgan v. Illinois, 504 U.S. 719 (1992), and the

Sixth, Eighth, and Fourteenth Amendments.” (App. Br.: 69).

At the outset, it should be noted that Appellant’s point of error

number eight is multifarious in that it attempts to invoke violations of

a rule announced in a United States Supreme Court opinion, the Sixth

Amendment, the Eighth Amendment and the Fourteenth Amendment

to the United States Constitution without providing separate and

distinct arguments for why each of those provisions has been violated.

Moreover, Appellant wholly fails to point to any specific question in the

record that was not permitted to be asked. Instead, he points this Court

to nine pages of the record comprising a litany of questions propounded

and dialogue between the parties and the trial court during voir dire.

(App. Br.: 70) (citing 20 RR 189−90, 194, 196; 21 RR 74−77; and 21 RR

80).

A trial court has discretion to restrict voir dire questions that are

confusing, misleading, vague, broad, or that are improper commitment

questions. See Hernandez, 390 S.W.3d at 315. We therefore review a

trial court’s ruling limiting voir dire questioning for an abuse of

discretion, focusing on whether the appellant proffered a proper

question regarding a proper area of inquiry. Id.

McCALL – 25

A. The Proffered Question(s)

Individual voir dire commenced on September 30, 2019, and it

lasted until November 19, 2019. Grese was, by our count, the 58th venire

person examined, on October 21st. Johnson was the 60th venire person

examined, the next day. At the end of Johnson’s individual voir dire,

Appellant was granted a running objection to the trial court’s failure to

permit him, over the State’s objections, to pose a certain question to the

remaining venire persons. A total of 125 venire persons were examined.

Thus, Appellant complains in essence that he was deprived of asking his

proffered question to a little more than half of the venire persons.

The question Appellant wished to propound to those venire

persons pertained to their understanding of the scope of Article 37.071,

Section 2(f)(4)’s definition of “mitigating evidence.” That provision

requires the jury, in applying the second “mitigation” special issue

embodied in Article 37.071, Section 2(e)(1), to “consider mitigating

evidence to be evidence that a juror might regard as reducing the

defendant’s moral blameworthiness.” 8 Fearful that prospective jurors

might construe this statutory language in a manner that is

unconstitutionally narrow, Appellant sought to ask the venire persons a

hypothetical question. He proposed to ask whether, if they perceived

there to be some aspect in the punishment phase evidence that justified

8 Article 37.071, Section 2(e)(1) requires the trial court to instruct that

jury to answer “[w]hether, taking into consideration all of the evidence,

including the circumstances of the offense, the defendant’s character and

background, and the personal moral culpability of the defendant, there is a

sufficient mitigating circumstances or circumstances to warrant that a

sentence of life imprisonment without parole rather than a death sentence be

imposed.”

McCALL – 26

a sentence of less than death, but they construed Section 2(f)(4)’s

definition as too constricting to accommodate that evidence, they could

still answer the special issue “yes” despite their narrow understanding

of the statutory definition. The State objected that this constituted an

impermissible “commitment” question, and the trial court by and large

prohibited Appellant from obtaining an answer from either Grese or

Johnson.

A commitment question is one that commits a venire person to

resolve, or refrain from resolving, an issue a certain way after learning

a particular fact. Hernandez, 390 S.W.3d at 315. Often a commitment

question requires a “yes” or “no” answer, and the answer commits a juror

to resolve an issue in a particular way. Id. By asking, “are you going to

go ahead and answer yes or are you going to answer that question no,”

Appellant’s hypothetical posed a “yes” or “no” inquiry that sought to

commit Grese and Johnson to a particular legal resolution of the

mitigation special issue. Whether that commitment question was a

“proper” one depends upon whether the venire person’s commitment to

answer the question in a particular way would constitute a basis for a

challenge for cause. See Standefer v. State, 59 S.W.3d 177, 182 (Tex.

Crim. App. 2001) (“[F]or a commitment question to be proper, one of the

possible answers to that question must give rise to a challenge for

cause.”).

We need not decide whether a proper commitment question could

be fashioned to address Appellant’s concern about Section 2(f)(4)’s

definition of “mitigating evidence.” In our view, the specific questions

Appellant sought to ask were improper, in any event, as too confusing

McCALL – 27

and misleading. They were premised on the improper assumption that

Section 2(f)(4)’s definition is, in fact, unconstitutionally narrow, contrary

to this Court’s construction. See Coble, 330 S.W.3d at 296 (holding that

it is “not the case” that a jury would be “reasonably likely” to construe

the statutory language in an unconstitutionally narrow fashion). In

short, they misrepresented the state of the law.

B. Grese

Defense counsel began his discussion of mitigating evidence with

venire person Grese by suggesting what may well have been an

improperly broad definition of mitigation. He told her that “[e]veryone”

(presumably he meant jurors) “is allowed to be as merciful as they want

to be, period.” Of course, the United States Supreme Court has made it

clear that a juror’s exercise of mere “mercy”—that is, mercy that it is

untethered to any proffered evidentiary basis for mitigation—would be

inappropriate. See California v. Brown, 479 U.S. 538, 542 (1987)

(approving of a jury instruction in a capital case informing the jury to

avoid “mere sympathy” in assessing whether to impose the death

penalty because it instructs them to avoid considerations apart from the

evidence actually presented at the punishment phase).

Defense counsel next told Grese that he had what he himself

characterized as “a weird question” for her. The following colloquy

ensued:

[DEFENSE COUNSEL]: Now, you understand you

are going to get an instruction -- if you are on the jury in

this case, you are going to get an instruction, when it comes

to Special Issue #2, that mitigation is anything that would

affect the moral blameworthiness of an individual.

McCALL – 28

[GRESE]: Okay.

[DEFENSE COUNSEL]: That’s kind of a broad

question, but what it comes down to is this. If there is a

reason that you do not want to impose the death penalty,

any reason at all, you have the right to do that. Do you

understand?

[GRESE]: Yeah.

Again, defense counsel misinformed the venire person. A juror in a

capital prosecution may not properly, for example, refuse to impose the

death penalty simply to vindicate her conscientious scruples against the

death penalty in general. See Wainwright v. Witt, 469 U.S. 412, 424

(1985) (a prospective juror is challengeable for cause when his views

about the death penalty would “prevent or substantially impair the

performance of his duties as a juror in accordance with his instructions

and his oath”).

Defense counsel continued:

[DEFENSE COUNSEL]: Now, if the Court gives you

an instruction that it comes down to the individual’s moral

blameworthiness, is that going to be something that throws

you off or causes an issue, or is it going to be something

that you are going to feel like you have to follow or --

[STATE]: I am going to --

[GRESE]: I feel I would have to --

THE COURT: Stop, stop.

[STATE]: I am going to object at this point in asking

a juror with regard to disregarding the law. The law will be

defined by the Court.

McCALL – 29

THE COURT: I don’t like the question, so sustained.

[DEFENSE COUNSEL]: Let me say it like this. The

law requires that whatever mitigating factors you choose

must reduce moral blameworthiness, okay?

[GRESE]: Okay.

[DEFENSE COUNSEL]: If a situation like that

comes up, is that something that you can apply anyway, or

are you going to let someone tell you that your reasoning

may not meet the definition of moral blameworthiness?

[STATE]: I am going to object for a commitment

question and I am also going to object with regards to

asking the juror outside what the law is that is given by

the Court.

THE COURT: Sustained.

[DEFENSE COUNSEL]: I am going to try this one

more way, and if I get shut down, I am going to stop, okay?

[GRESE]: Okay.

[DEFENSE COUNSEL]: Hypothetically, in a

situation where you have found someone guilty, you have

gone through Special Issue #2 and -- Special Issue #1 and

you are looking at [S]pecial Issue #2, okay? And in your

mind, you have got a reason in your mind that Special Issue

#2 should be answered yes, that that person’s life should be

spared, okay?

[GRESE]: Okay.

[DEFENSE COUNSEL]: But the reasoning you

have in your mind does not affect the definition or does not

affect the moral blameworthiness, are you going to go

ahead and answer yes or are you going to answer that

McCALL – 30

question no?

[STATE]: Objection, commitment, and it does not - -

THE COURT: Sustained.

[DEFENSE COUNSEL]: Will you follow the law I’ve

been talking about the last couple of minutes, even though,

in your mind, the answer may be yes?

[STATE]: Again, the same commitment question.

THE COURT: Just ask if she is going to follow the

law?

[DEFENSE COUNSEL]: Well, are you going to

follow the law regardless of what your personal opinion is?

[GRESE]: Yes.

THE COURT: There you go. There you go.

Later, in explaining to the trial court the basis for his challenge

for cause against Grese, which was denied, defense counsel argued:

[DEFENSE COUNSEL]: Your Honor, we would

challenge the juror for cause for the following reason: The

State’s use and reliance upon the statutory definition of

mitigation as something that reduces a person’s moral

blameworthiness for the commission of the offense restricts

the proper consideration of mitigation and causes the juror

to be mitigation impaired.

THE COURT: Didn’t y’all use the same definition?

Y’all used -- in your question, you used exactly the same

definition.

***

[DEFENSE COUNSEL]: . . . Now, yes, we are both

McCALL – 31

using the same definition because it is the statutory

definition --

THE COURT: Right.

[DEFENSE COUNSEL]: -- that the Court will give.

In prior challenges to the constitutionality of that

particular definition, the Court of Criminal Appeals has

consistently said, when they deny the allegation of

unconstitutionality, that jurors somehow discern that they

are not limited to that definition. They’ve never explained

how the jurors know that, but that’s what they’ve said in

their opinion.

So, basically, all we are trying to do is show them

what the Court of Criminal Appeals says they already

know, and this is that mitigation is not really limited to

that definition. So when they are limiting it to the

definition and we are not being allowed to tell the jury that

they can, in fact, act upon their own personal moral

judgments, regardless of the definition, then we are

restricting it beyond the place where the Court of Criminal

Appeals indicates they already are.

***

And our question that we pose is if you think based

on what you’ve heard in the trial that you would answer

yes to Special [Issue] 2, but because of the Court’s

definition, they are going to answer no, because in your

mind it doesn’t reduce the moral -- personal moral

blameworthiness, and you are going to do that. So even

though you think the answer ought to be yes, and I think I

should spare this person’s life based on what I heard, I

don’t think that meets the Court’s definition of reduction of

moral blameworthiness; so, therefore, I am going to say no,

even though I would otherwise answer it yes. That’s where

we’re going.

THE COURT: Okay. I understand.

McCALL – 32

[DEFENSE COUNSEL]: I want to make sure it is

clear in the record that’s what we are trying to -- the

response we are trying to elicit so that the record is clear.

THE COURT: You probably need to be a little more

articulate with your question.

[DEFENSE COUNSEL]: I’m sure I probably could.

Appellant then exercised a peremptory challenge against Grese, and she

was excused.

C. Johnson

Defense counsel attempted to question venire person Johnson

along similar lines:

[DEFENSE COUNSEL]: So let’s say that you think

the answer to Special [Issue] 2 should be yes, but when you

think about it intellectually, you can’t square what you

think with the definition of it reduces the moral -- or the

personal moral blameworthiness of a defendant. In other

words, it is something that tells you the answer should be

yes, but when you think about what those words means to

you, personal -- reducing personal moral blameworthiness,

that doesn’t fit, so how you are stuck between, well, I think

the answer ought to be yes, but this definition the Court

gave me of what mitigation is, which is reducing this

personal moral blameworthiness, that’s what I have got to

follow. That what the law would say, okay?

So first off, can you take the oath to follow the law?

[JOHNSON]: Yes.

[DEFENSE COUNSEL]: And even though you

thought the answer would be yes, would you answer no if

you weren’t convinced that whatever you thought was

telling you to be yes didn’t reduce the personal moral

blameworthiness of the Defendant?

McCALL – 33

The State raised a commitment objection, and the trial court sustained

the objection. Defense counsel rephrased the question as follows:

[DEFENSE COUNSEL]: All right. Mr. Johnson, you

may answer yes to the Special Issue #2 based on any

evidence you have heard that could serve as a basis for you

to think that a sentence of life without parole is more

appropriate than death, regardless of any instruction given

by the Court as to what the definition of mitigation would

be.

The State objected that the question called for the juror to disregard the

law. The trial court sustained the objection, and the defense counsel

rephrased the question again:

[DEFENSE COUNSEL]: [H]aving found somebody

guilty of capital murder of a police officer and having found

beyond a reasonable doubt that Special Issue #1 is yes,

would you be able to answer Special Issue #2 yes so as to

impose a sentence of life without parole on an individual if

you thought that was the right thing to do?

[JOHNSON]: Yes. And in terms of that, the right

thing to do would be based off of the circumstances that I

am considering.

[DEFENSE COUNSEL]: Okay. But you would be, in

your mind, bound by any definition given to you by the

Court as to what the definition of mitigating would be?

[JOHNSON]: I would follow the indications of the

Court.

[DEFENSE COUNSEL]: Okay. So once again, if it

you thought that the answer would be yes but it didn’t meet

your understanding of reducing the personal moral

blameworthiness of the Defendant, you would answer --

you would follow the Court’s instruction and answer no?

McCALL – 34

[STATE]: Objection, commitment.

THE COURT: Say that again, [counsel]. I lost you on

that one.

The defense counsel again restated the question, and the State

reasserted its commitment objection. In response, the trial court

interjected:

THE COURT: All he is asking on that question is

can he follow the Court’s instruction.

[DEFENSE COUNSEL]: That’s what I am asking.

THE COURT: That’s how I took that question, so

you can answer that question.

[JOHNSON]: Yes.

Defense counsel challenged Johnson for cause based upon his

ultimate answer, explaining as follows:

[DEFENSE COUNSEL]: [B]ecause of the

instruction the Court will give as to mitigation, reducing --

being defined as reducing the personal moral

blameworthiness of the Defendant, that that instruction

flies in the face of Tennard v. Dretke, and that that - -

because the juror would follow the Court’s instruction as

the law, even though he might think there is something

that should serve as a reason for him to answer yes to

Special Issue #2 and sentence a defendant to life without

parole, he would answer that question no solely based on

the instruction of the Court of the definition of mitigation,

so we would object that the individual under the Supreme

Court of the United States is mitigationally impaired[.]

The trial court overruled Appellant’s challenge for cause, and then

McCALL – 35

granted him a running objection. It is not altogether clear, however,

whether the running objection was necessarily to the persistent failure

of the trial court to permit the question, or instead to any continued

failure to grant challenges for cause based upon the ultimate answers

Appellant was able to obtain, once he phrased the question to the trial

court’s satisfaction. 9 Appellant did not exercise a peremptory challenge

against Johnson, who ultimately served on the jury.

D. The Propriety of the Question

Appellant claims that he was impermissibly constrained in his

ability to test the qualifications of the venire persons to impose a life

sentence rather than the death penalty, under Morgan v. Illinois. See

504 U.S. 719, 736 (1992) (“Petitioner was entitled, upon his request, to

inquiry discerning those jurors who, even prior to the State’s case in

chief, had predetermined the terminating issue of his trial, that being

whether to impose the death penalty.”). But the trial court did not

completely foreclose specific voir dire about the venire persons’ ability to

consider evidence in mitigation of the death penalty, as in Morgan. See

9

Immediately after the trial court denied the challenge for cause

against Johnson, the following exchange occurred:

[DEFENSE COUNSEL]: Your Honor, may we have a

running objection, to kind of save time, just call it the Tennard

objection, where it is appropriate for -- in future instances?

THE COURT: If you think that’s appropriate, I will allow

you to have a running objection.

Appellant argues that he was thus “granted a ‘running objection’ to the [trial]

court’s action.” (App. Br.: 70). Whether that objection was to anticipated

denials of future challenges for cause or to the anticipated further denial of

Appellant’s proffered line of questioning is debatable.

McCALL – 36

id. at 723−24 (describing the trial court’s failure to permit any question

tailored specifically “to question potential jurors so as to identify and

exclude any who would vote for the death penalty in every case after

conviction for a capital offense”). It simply disallowed the form of the

specific question by which Appellant attempted to test the prospective

jurors’ qualifications in that regard. See Hernandez, 390 S.W.3d at 315

(“Where the trial court does not place an absolute limitation on the

substance of an appellant’s voir dire question, but merely limits a

question due to its form, the appellant must attempt to rephrase the

question or risk waiver of the alleged voir dire restriction.”). And rightly

so.

The flaw in Appellant’s proffered question is that it assumed a

state of the law that is not accurate. It presumed that the statutory

language in Article 37.071, Section 2(f)(4), is unconstitutionally narrow

on its face, such that a juror who felt bound by a trial court’s instruction

limited to the statutory language would be constrained in his ability to

give effect to the full panoply of mitigating evidence. But this Court has

declared the contrary—at least to the extent that we have held that the

statutory language does not suggest a “nexus” requirement between the

offense and the mitigating evidence. Coble, 330 S.W.3d at 296. In fact,

the Court has observed that it is not “reasonably likely” that a jury

would “infer” such a nexus requirement from an instruction based upon

the statutory text. Id. Nor has the Court ever declared the statutory

language to be constitutionally deficient in any other regard that would

unconstitutionally circumscribe a juror’s ability to give full effect to a

defendant’s proffered evidence in mitigation of the death sentence. It

McCALL – 37

was therefore improper to predicate a voir dire question upon an

inaccurate understanding of the state of the law.

Ultimately, the problem is not with what Appellant was trying to

accomplish by his question so much as with how he was going about it.

It might have been possible for him to formulate a proper commitment

question—one that could, depending upon the answer, have given rise

to a challenge for cause. But we need not decide that question today. We

hold only that the trial court did not abuse its discretion by declining to

permit Appellant to approach this topic in the way that he did, which

was inherently confusing and misleading because it assumed that the

statutory law, to which the jurors would be bound, was somehow not the

law. To the extent that the trial court’s grant of a running objection

amounted to a ruling that Appellant would not be permitted to ask

similarly improper questions to the latter half of the venire persons on

the panel (if that is what it did), the trial court did not err.

V. LAWFULLY CONSTITUTED JURY

In points of error four and five, Appellant contends that errors in

the trial court’s rulings on challenges for cause to venire persons

Davidson, Brasher, Ashcraft, Rogers, Johnson, and Solomon, either by

themselves or in any combination, deprived him of a lawfully constituted

jury, which he claims somehow violated his rights under the federal

(Sixth Amendment and due process) and state (Article 1, Section 10)

constitutions and Article 35.16. 10 We disagree.

We have already concluded that the trial court’s denial of

10 U.S. CONST. amends. VI, XIV; TEX. CONST. art. I, § 10; TEX. CODE

CRIM. PROC. art. 35.16.

McCALL – 38

Appellant’s challenges for cause against Davidson and Brasher was

within its discretion. Appellant excused them both by peremptory

challenge, as he likewise excused Ashcraft and Rogers, so none of them

served on the jury. We have also concluded that the trial court acted

within its discretion by granting the State’s challenge for cause against

Solomon.

The only venire person about whom Appellant complains in these

points of error who ultimately served on the jury was Johnson. But

Appellant brings no independent point of error in this appeal

challenging the trial court’s denial of his challenge for cause against

Johnson. And he makes a wholly inadequate argument, within the

confines of these brief and multifarious points of error, to demonstrate

how the trial court abused its discretion by denying that challenge for

cause.

There is no right to have any particular person serve on a jury.

Colone v. State, 573 S.W.3d 249, 261 (Tex. Crim. App. 2019). Appellant

has not shown that any of the venire persons who ultimately did serve

on his jury somehow deprived him of a lawfully constituted jury—that

is to say, a jury made up of jurors who were qualified. Id. Because he

does not otherwise demonstrate how the composition of the jury that

ultimately sat violated any of the various federal and constitutional

provisions he cites, he is not entitled to relief on these claims. We

overrule points of error four and five.

VI. CONCLUSION

We affirm the trial court’s judgment of conviction and sentence of

death.

McCALL – 39

DELIVERED: October 25, 2023

DO NOT PUBLISH