1 John T. Boyd , Ch ief Ju stice (Re t.), Sev enth Co urt of A ppe als, sitting by ass ignm ent. TEX
. GOV ’ T CODE ANN
. § 75.0 02(a )(1) (V erno n Su pp. 2 003 ).NO. 07-02-0276-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL E FEBRUARY

20, 2003

______________________________

PETE CAMACHO, Appellant
v. THE STATE OF TEXAS, Appellee

_________________________________ FROM THE 364 TH DISTRIC T COURT O F LUBBOCK COUNTY; NO. 2001-436,692; HON. CECIL G. PURYEAR, PRESIDING

_______________________________ Before QUINN and REAVIS, JJ., an d BOYD, S.J. 1 Appellant

Pete Camacho was convic ted of assault. He challeng es that convicti on through two iss ues in whi ch he contends that the trial court 1) err

ed in ov erruling his objection to the non -resp onsive answer of a witness, which answer interjected evidence of extraneous offen ses, and 2) improperl y excus e d a p r o s p e c t i v e j u r o r fo r c a u s e
. We overruleeach issue and affirm the judgment.2 Issue One - O

bjection t

o Non-Responsiveness In his first is sue, a ppellant argues the trial court erred in failing to susta in his objection to the non-res ponsive answ er of a witne ss. Through the ans wer, the witness interjected evidence of ex traneo us o ffenses. We overrule the issu e for the follow ing
reasons. The response at i ssue was u ttered by F rancis Gonz alez in answe r to a quest ion asked by appellan t’s counsel. The latter q ueried whether s he was “very happy with Pete. ” Gonzalez

replied: “ The man shot at me, he’s put a knife in my s ide, I’m not very happy with him, no.” At

that point, appel lant objected, contending that t he answer was “nonresponsive.” The court replie d: “Allow the question. ” The questi on was then r epeated, and Francis stated, “No, no one hits my daughter.” No other object io n was lodged by appellant; nor did the court make any other comm ent a bou t the obje ctio n or th e tes timo ny. To the e xtent appe llan t now c ontends t hat the response contained evi dence of extraneousoff ense s ina dmis sible per T exas R ule o f Evi dence 404(b), this ground for excluding the testimony was not al leged below . Thus, the complaint was not preserved for revie w. See Mc Fa rland v. State , 845 S.W.2d 824, 838 (Tex. Crim. App. 1992), cert. denied, 508 U.S. 963, 113 S.Ct. 29 37, 124 L.Ed.2d 68 6 (1993). To the extent appellant conte nds that the testimon y was inadmissible because i t
was not in response to the questi on, we aga in conclude that the dispute was not preserv ed for review . This is sobecause the tri al court did not rule upo n the objec tion. Such is required by Texas Rule of Appellate Procedure 3 3.1(a)(2). Nor can we say that because the trial cour

t “allowed the question, ” it implicitly overr uled appellant’s obj ection to the
answer or refused to r ule on the objection. ( Emphasis added). Simply put, the burden lay3

with appellant to pr

ess his objec

tion to an adverse rulin g, Lusk v. State, 82 S.W.3d 57, 60 (Tex. App.—Amarill o 2002, pet. ref’d) , or to a point illustra ting that

the court refused to rule. T EX
. R. A PP
. P. 33.1(a)(2) (B). Her e, he did neither

. Fina lly, assumin g arguendothat the trial court rule d on the objection and did so impr ope rly, we note that other evidence of assaultive conduct on the par t of appellant was admitted without obj ection. This testimony in cluded referencesto hi m having shot Gonza lez, having been previous ly conv icted for assaul ting her, a nd having str uck her daughter. Given thi s, the error , if any, was not reve rsible. Lee v. State , 321 S.W.2d 577, 580 (Te x. C rim. App. 1959) (holding that like error was not reversible because evidence of other assaultive conduct was admitt ed without objection).

Issue Two - Excuse of Prospective Juror In his second issue, appellant com plains that the trial court impro perly excused a pros pect ive juror for cause even though she stated she could hold the State to its burden of proof. We overrule the iss ue. The juror in question, Ms. Sunig a, indicated during gener al voir dire that shewould have trouble sitting in judgment of anothe r person. Later, w hen brought before the judge, the followin g exchang e took place: * * * MS. SUNIGA: I just don’t think that I’m - - I’m not anybody to do that, to sit in judgment on someone else. MR. COWA N: Okay, So, - - MS. SUNIGA: I mean, - - MR. COWAN: Is t hat j ust a per sona l be lie f?4

MS. SUNIGA: Yeah. MR. COWAN: That you shoul dn’t do that? MS. SUNIGA: Yes, I mean, I - - MR. COWA N: If you were chosen to be a juror in the case, - - MS. SUNIGA: I could be fair, yes. MR. COW AN: Yo u cou ld be fair , but coul d you - - if yo u bel ieve d th e evidence and if you believed t he testimony and if you beli eved that the State established their proof that they needed to, beyond a reas onable doubt, could you find the per son guilty , having this reser vat ion aboutsitting in judgment? If you believed the testimony had establishe d a person’s guilt, would your p erso nal b elie fs p reven t you f rom s till f indi ng a pe rson guilt y? MS. SUNIGA: No. MR. CO W AN: Yo u cou ld fi nd hi m guil ty? MS. SUNIGA: I mean, after - - l ike it would have to b e like you said, beyond a shadow of a doubt. MR. COW AN: Okay. Well, turning to that, the bur den of proof that

the law says I have to meet is bey ond a reasonable do ubt. And I talked for a w hile about some peopl e wan t proof be yond all doubt, which i s what I k ind of talked about wi th w hat s hado w of

a doubt may be, kind of try ing to port ray beyond all doubt. W ould you have to know beyond all doubt before you could find some bod y guilt y? MS. SUNIGA: Yes. MR. COW AN: Yo u understand that’s dif ferent from be yond a reasonable doubt? MS. SUNIGA: I would have to - - I would, like, - - it woul d have to be pr

oved
- - MR. CO W AN: Ok ay. MS. S UNIGA : - - what ever yo u say.5

MR. COWAN: Beyond all doubt or beyond a reasonable do ubt? MS. SUNIGA: Beyond all doubt. MR. COW AN: Okay. All ri gh t. Thank you, ma’am. I challe nge for cause, Judge. MR. HOCKE R: May I ask a ques tion? THE COURT: Sur

e. MR. H OCKE R: You under stand that w hat we want you to do i s follow the law and apply thelaw

in this c ase with w hat the Judge c harges you with. And we k now you would want to hear proof beyond all doubt, but the law says you only have to hear proof bey ond a reasonable do ubt. Coul d you follow

the law as

Mr. Cow

an provided to you, be yond a reason able do ubt; co uld you foll ow th at law and con vic

t him? MS. SUNIGA: I don’t unders tand. MR. HOCKER: Could you follow - - MS. SUNIGA: I mean, - - MR. HOCKE R: Ifthe J udge tells you th ey on ly hav e to do it beyond a reasonable doubt, not beyond all doubt, can you f ollow what th e Judge tells you to do? MS. SUNIGA: Yeah. MR. H OCKER: Okay . If Mr. Cow an, then, proved it to you beyond a reasonable doubt and you bel ieved it b eyond a reasonable doubt, and the Judge says that’s all they had to do, could you convict hi m based on that? MS. SUNIGA: Yeah. MR. HOCKE R: What? MR. [sic] SUNIGA: Yes. M R. HOCKER: Thank you. We’ll oppose the chal lenge for cause , Y ou r Honor.6

T HE COU RT: The Court i s going to grant the challenge bas ed upon the equivo cation of the juror in this cause. The Cou rt will grant the State’s challenge. .

. . Whether the trial cour

t erred in ex

cusing Suni ga depends upon whether i t abused its discretion

. Ladd v. State, 3 S.W.3d 547, 5 59 (Tex . Cri m. App. 1999), cert. denied, 529 U.S. 1070, 120 S.Ct. 1680, 146 L.Ed.2d 487 (200 0). Sim ilarly , the trial court’s ruling is entitled to deference w hen the reco rd ill ustr ates that the p rosp ecti ve juror’s comments are vacillatin g, unclear, or contradictory; this is so because that court is i n the best posit ion to evaluate the person’s demeano r and responses. Ladd v. State , 3 S.W.3d at 559. Here, Suniga indicated that she could sit in judgment of a defendant i f the State prov ed its case. Yet, she vacil lated about whether she would require the State to prov e its case bey

ond a reasonable doubt or beyond all doubt. S o, despite her indication that she could convict if guiltwere established beyond a reasonable doubt, we cannot s ay the tri al court abused its discretion in excusi ng her from the panel in view

of her earlier

contradictor

y response. See Green v. State, 840 S.W.2d 394, 406 (Tex. Crim. App. 1992), cert. denied, 507 U.S. 1020, 113 S.Ct. 1819, 123 L.Ed.2d 449 (1993) (holding that conflicting responses pr ovide an adequate basis supporting the trial court’s deci sion to either r etain a prospec

tive jur or or excuse the per

son for cause). Accordingl y, the judg ment of the trial court is affirmed.

Brian Quinn Justice Do not publish

.