In the Court of Criminal 

Appeals of Texas

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No. AP-77,095

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BRANDON DE McCALL,

Appellant

v.

THE STATE OF TEXAS

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

In the 296th District Court

Collin County

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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 
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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.”).
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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 
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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 
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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 
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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 futuredangerousness 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:
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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 futuredangerousness 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 asapplied 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