Opinion filed September 29, 2011



### In The 

# Eleventh Court of Appeals

__________



### No. 11

- 09

- 00342

- CR

__________

BRIAN SWEARENGIN

, Appellant

V.

STATE OF TEXAS

, Appellee

On Appeal from the 161st District Court

Ector County, Texas

Trial Court Cause No. B

- 34,061

O P I N I O N

The jury convicted Brian Swearengin of capital murder and assessed his punishment at

confinement for life without parole. We affirm.

Appellant brings three issues on appeal. In his first two issues

, appellant contends that

the trial court erred when it overruled appellant’s challenges for cause against two venirepersons

.

He argues in his third issue that the trial court erred when it submitted a jury charge in which it

did not provide for a unanimous finding of the underlying offense to the capital murder.

Appellant has not challenged the sufficiency of the evidence.2

During voir dire

, appellant’s counsel asked the members of the ju ry panel what the y

believed a d efendant’s obligation wa s after the State had presented its evidence. Several venire

persons gave varying responses as to what the y thought a d efendant wa s required to do during

trial. The trial court spoke individually wit h a number of the venirepersons regarding their

responses . Appellant exercised challenges for cause against several of those venirepersons

. O n

appeal

, he complains that the trial court erred when it denied challenges against Venire

person Armendariz and Venireperson McCarter. The following exchange s took place between

appellant’s counsel s , the trial court

, the State, and the two venirepersons :

THE COURT: Okay. Mr. Arme ndariz, someone has a question.

[DEFENSE COUNSEL 1 ] : Judge, I think Mr. Armendar iz

-- and don’t let me put words in your mouth. But the way I understood it was that you would want some evidence put on by the Defense; is that correct?

[ VENIREPERSON NO. 4 ]: Yes, sir.

[DEFENSE COUNSEL 1 ] : And that is a firm belief you are going t o require it in any case?

[ VENIREPERSON NO. 4 ]: Well, not in any case, but particularly this case, it is [ a ] murder case.

[DEFENSE COUNSEL 2]: Okay. In an important case?

[DEFENSE COUNSEL 1 ] : In an important case.

[PROSECUTOR] : Can I ask a question? If the S tate doesn’t prove its case beyond a reasonable doubt, and the Defense doesn’t put on anything, are you going to require anything of the D efense?

[ VENIREPERSON NO. 4 ]: Can you repeat that?

[PROSECUTOR] : If the State doesn’t meet its burden and doesn’t prove its case beyond a reasonable doubt, you wouldn’t

-- would you require anything

from the Defense

–

[DEFENSE COUNSEL 1 ]: Judge, I really think that is another issue.

[PROSECUTOR]: No.

[DEFENSE COUNSEL 1 ]: W hat he is talking about is

--3 [PROSECUTOR]: Can he answer the question?

[DEFENSE COUNSEL 1 ]: What he is talking about is

--

THE COURT: What?

[DEFENSE COUNSEL 1 ]:

-- Mr. Armendariz’s statement was that he would require

-- if the State put on a case, he would require some evidence from

the Defense.

THE COURT: Is there anything I can say, Mr. Armendariz, that would get you to change your mind about that? And I will tell you, the Defendant has no obligation at all to put on any evidence. If I tell you that, would that make you

rethink

. . . your position?

[ VENIREPERSON NO. 4 ]: It would.

THE COURT: All right. So then if the State puts on a case, and the State, in your mind, did not prove its case, you would not requ ire the Defendant to

defend himself?

[ VENIREPERSON NO. 4 ]: Huh

- uh.

. . . .

THE COURT: Mr. McCarter.

[DEFENSE COUNSEL]: Mr. McCarter, I have got a lot going on up here.

[ VENIREPERSON NO. 14 ]: I understand.

[DEFENSE COUNSEL]: A lot of moving parts. As I understand it, and what you were stating was that you would want some evidence put on by the Defense, is that a correct statement of what your understanding was?

[ VENIREPERSON NO. 14 ]: That is right.

[DEFENSE COUNSEL]: And the Sta te’s case might be strong, it might be weak, but you would still want to hear from the Defense, and want to hear

some evidence?

[ VENIREPERSON NO. 14 ]: Something, yes.

[DEFENSE COUNSEL]: All right. In the case?

[ VENIREPERSON NO. 14 ]: Yes.4 [PROSECUTOR]: In any case?

[DEFENSE COUNSEL]: In any case?

[ VENIREPERSON NO. 14 ]: Yes.

[PROSECUTOR]: However you understand the State has the burden of proof, right?

[ VENIREPERSON NO. 14 ]: Right.

[PROSECUTOR]: And if the State fails to meet its burden, you will vote, when you vote, not guilty?

[ VENIREPERSON NO. 14 ]: Yes.

[PROSECUTOR]: Even if the Defense doesn’t put on anything?

[ VENIREPERSON NO. 14 ]: Yes, I will.

[PROSECUTOR]: So they can do nothing. And if we don’t pro ve our

case

--

[ VENIREPERSON NO. 14 ]: If the State doesn’t prove their case, then I would vote not guilty.

[PROSECUTOR]: You were to say earlier preference that you would like to hear. But obviously if we don’t prove our burden, they don’t have to d o anything; is that correct?

[ VENIREPERSON NO. 14 ]: No

, that is true. They don’t have to do anything.

[PROSECUTOR]: And you wouldn’t hold them to that; is that correct?

[ VENIREPERSON NO. 14 ]: Yes.

Appellant ’s challenges were based on Venireperson Armendariz ’s and Venire

person McCarter’s statements regarding a defendant’s obligation to present evidence. The trial

court overruled both challenges

. The State agrees that a ppellant properly preserved the claimed

errors. See Feldman v. St ate , 71 S.W.3d 738, 744 (Tex. Crim. App. 2002) (error is preserved on

denied challenges for cause when an appellant establishes five specific requirements on the

record)

.5

W hen w e review a trial court’s decision to grant or deny a challenge for cause, we look at

the entire record to determine whether there is sufficient evidence to support the trial court’s

ruling. Id. Before venireperson s may be excused for cause, the law must be explained to them,

and they must be asked whether they can follow that law regardless of their personal views.

Gardner v. State , 306 S.W.3d 274, 295 (Tex. Crim. App. 2009). The proponent of a challenge

for cause has the burden of establishing that the challenge is pr oper. Id

. The proponent does not

meet this burden until the proponent shows that the venire person understood the requirements of

the law and could not overcome his prejudice well enough to follow the law. Id.

We review a trial court’s ruling on a chall enge for cause with considerable deference

because the trial court is in the best position to evaluate a venire person ’s demeanor and

responses. Id. at 295

- 96. W hen a venire person ’s answers are vacillating, unclear, or con

tradictory , we accord particular deference to the trial court’s decision. Id. a t 295. We reverse a

trial court’s ruling on a challenge for cause only if a clear abuse of discretion is evident. Id. at

296.

Here, the trial court asked Venireperson Armendariz wh ether the law would change his

personal feelings about a defendant’s obligations during trial. Venireperson Armendariz

responded that it would change his personal opinion

. The trial court then asked, “ So then if the

State puts on a case, and the State, i n your mind, did not prove its case, you would not require t he

Defendant to defend himself?” Venireperson Armendariz responded, “Huh

- uh.” Appellant

failed to show that Venireperson Armendariz understood the requirements of the law and yet

could not overcome his personal feelings in order to follow the law ; the record as a whole shows

the opposite. The trial court did not abuse its discretion when it overruled appellant’s challenge

for cause a gainst Venireperson Armendariz.

For the same reason, the trial court did not err when it overrul ed appellant’s challenge for

cause against Venireperson McCarter

. After the State explained the law to him, Venire

person McCarter stated that, even though he originally stated that his personal preference was for

a defendant to put on some evidence, he wou ld not require a defendant to do anything if the State

did not prove its case

. Appellant failed to show that the challenge was proper. The tr i a l court

did n ot abuse its discretion when it overruled appellant’s challenge to Venireperson McCarter.

We overrule appellant’s first and second issues.6

Appellant contends in his third issue that the trial court erred when it submitted a jury

charge in which it allowe d the jury to convict him of capital murder if the jury found that he

committed any of the underlying offenses of aggravated sexual assault, robbery, or burglary of

habitation. Specifically, appellant argues that he had the right to require a unanimous ve rdict as

to which underl y ing offense the jury believed he committed. He claims that

, when the trial court

allowed different jurors to determine that he committed different underlying offenses, he was

deprived of that right. Appellant also complains that the prosecutor’s final argument was

improper because the prosecutor further explained that the jurors were not required to

unanimously decide which underlying offense a ppellant committed. We disagree.

As opposed to instructi ng a jury on two separate offenses involving separate criminal

statutes , t he unanimity requirement is not violated when a trial court instructs the jury on

alternative theories of committing an underlying offense in a capital murder case. Martinez v.

Stat e , 129 S.W.3d 101, 103 (Tex. Crim. App. 2004) ; Kitchens v. State , 823 S.W.2d 256 , 257

- 58

(Tex. Crim. App. 1991) . In Martinez , the jury charge permitted the jurors to find that Martinez

committed either of two underlying offenses: robbe ry or aggravated se xual assault. 129 S.W.3d

at 103. The c ourt , relying on Kitchens

, found the jury charge to be proper, as well as the State’s

jury argument to the effect that the jurors need not agree on which underlying offense Martinez

committed. Id.

Here, the jury charge tracked the language of the indictment : “[Appellant] was then and

there in the course of committing or attempting to commit the offense of aggravated sexual

assaul t or robbery . . . or burglar y of a habitation .” Although the State alleged in the in dictment

that appellant committed the different underlying offenses in the conjunctive, it was proper for

the jury to be charged in the disjunctive

. See Kitchens , 823 S.W.2d at 258.

Appellant concedes that this is the settled law in Texas

, but he argues tha t a non

unanimous finding of an underlying offense violates two United States Supreme Court decisions :

Apprendi v. New Jersey , 530 U.S. 466 (2000), and Ring v. Arizona , 536 U.S. 584 (2002). We do

not find the applicable law in Texas to be in co nflict with either case.

In Apprendi , the Court held, “ O ther than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond th e prescrib ed statutory maximum must be submitted to

a jury, and proved beyond a reasonable doubt.” Apprendi , 530 U.S. at 490

. While appellant is

correct when he states that the commitment of an underlying offense must be unanimously found7

beyond a reasonable doubt before a defendant can be convicted of capital murder, he is not

correct in relying on Ap prendi for the position that alternative means of committing an

underlying offense must be unanimously found by the jury. The applicable statute in Apprendi

allowed the defendant to be punished for a first degree felony if he was found guilty of a second

degree felony and then further found guilty of a hate crime by a preponderance of the evidence.

Id. at 491

- 92. Here, t hat is not the case

. The trial court required the jury to find appellant guilty

of the underlying offen se beyond a reasonable doubt

.

Under S ection 19.03 (a)(2) of the Texas Penal Code, a person commits capital murder if

“the person intentionally commits the murder in the course of committing or attempting to

commit kidnapping, burglary, robbery, aggravated sexual assault, arson, obstruct ion or

retaliation, or terroristic threat.” T EX

. P ENAL C ODE A NN

. § 19.03(a)(2) ( Ver n on 2011 ). Each of

the seven offenses listed are different means by which capital murder may be committed.

Submitting alternative theories on the underlying offense commi tted does not violate the

unanimity requirement. Martinez , 129 S.W.3d at 103.

In Rin g , the Court held that the defendant’s Sixth Amendment right to a jury trial was

violated when the trial judge, sitting alone, determ ined whether aggravating factors requ ired for

imposition of the death penalty were present

. Ring , 536 U.S. at 609

. Ring is not applicable here

because the jury , not the judge, determined that appellant committed the underlying offense

required for the capital murder conviction ; the Sixth Amendment right to a jury trial was not

violated. W e overrule appellant’s third issue

.

T he judgment of the trial court is affirmed

.

JIM R. WRIGHT

CHIEF JUSTICE

September 29 , 2011

Publish. See T EX

. R. A PP

. P. 47.2(b).

Panel consists of: Wright, C.J., McCall, J., and Kalenak , J.