IN THE

TENTH COURT OF APPEALS

No. 10-08-00360-CR

No. 10-08-00361-CR

SEDRIC LAMON SMITH,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 40th District Court

Ellis County, Texas

Trial Court Nos. 32887CR and 32888CR

MEMORANDUM OPINION

Sedric Lamon Smith was convicted by a jury of the offense of Burglary of a 

Habitation (No. 10-08-00361-CR) and of the offense of Unlawful Possession of a Firearm 

by a Felon (No. 10-08-00360-CR).1 TEX. PEN. CODE ANN. §§ 30.02 & 46.04 (Vernon 2003). 

Smith pled true to one prior felony conviction for enhancement purposes, and was 

sentenced to a term of seventy (70) years and ten (10) years, respectively, in the Texas 

Department of Criminal Justice – Institutional Division. TEX. PEN. CODE ANN. §§ 12.42 

& 12.34 (Vernon 2003). Because we find that the State’s questions were not improper 

 

1 Because Smith’s two cases were heard simultaneously, he has two separate appeals pending, and he has 

filed briefs with identical arguments in each appeal, we will consider both appeals in this opinion.
Smith v. State Page 2

commitment questions, that the failure to object to the trial court’s questioning was not 

fundamental error and was waived, that Smith’s failure to testify waived his objection 

regarding his motion to testify free from impeachment, and that he did not establish 

that he was prejudiced by a Brady violation, if any, we affirm. We also deny Smith’s 

request to adopt his co-defendant’s issues on appeal. 2

Commitment Questions

Smith contends that the trial court erred by allowing the State to improperly 

commit the jury panel to disregard the victim’s criminal history. A commitment 

question is one that commits a prospective juror to resolve, or to refrain from resolving, 

an issue a certain way after learning a particular fact. Standefer v. State, 59 S.W.3d 177, 

179-80 (Tex. Crim. App. 2001). It is generally improper to ask a commitment question 

during voir dire because it amounts to an improper attempt to bind a juror. See Lydia v. 

State, 117 S.W.3d 902, 905 (Tex. App.—Fort Worth 2003, pet. ref'd) (op. on remand). 

However, some commitment questions are proper. Id.; see Standefer, 59 S.W.3d at 181-

83.

For instance, counsel may ask prospective jurors whether they can follow the law 

when it requires a certain type of commitment from jurors and when the question states 

only the facts required to establish a challenge for cause. Standefer, 59 S.W.3d at 181-82 

(illustrating that counsel can ask jurors whether they can consider probation when the 

law requires the jurors to be able to consider the full range of punishment); Vann v. 

State, 216 S.W.3d 881, 884-85 (Tex. App.—Fort Worth 2007, no pet.). However, when 

 

2 Smith was tried simultaneously on both charges together with his co-defendant, Derek Boleware, who 

was also convicted of the burglary but acquitted of the possession of a firearm by a felon charge (No. 10-

08-00336-CR).
Smith v. State Page 3

"the law does not require the commitment, a commitment question is invariably 

improper." Standefer, 59 S.W.3d at 181.

Thus, the determination of whether a question is an improper commitment 

question consists of a three-part test: (1) is the question a commitment question; (2) 

could a possible answer to the question produce a valid challenge for cause because it 

would show that a juror would not follow the law; and (3) does the question only 

contain the facts required to make such a challenge. See Tijerina v. State, 202 S.W.3d 299, 

302 (Tex. App.—Fort Worth 2006, pet. ref'd) (op. on reh'g). "[T]he purpose for 

prohibiting improper commitment questions by either the State or the defendant is to 

ensure that the jury will listen to the evidence with an open mind--a mind that is 

impartial and without bias or prejudice--and render a verdict based upon that 

evidence." Sanchez v. State, 165 S.W.3d 707, 712 (Tex. Crim. App. 2005).

Attempting to determine whether a potential juror would automatically be 

biased against a witness who has a criminal history is a commitment question. Lydia v. 

State, 109 S.W.3d 495, 499 (Tex. Crim. App. 2003). We then must decide if a possible 

answer to the question could result in a challenge for cause. A prospective juror may be 

properly challenged for cause and removed "if he cannot impartially judge the 

credibility of a witness." Ladd v. State, 3 S.W.3d 547, 560 (Tex. Crim. App. 1999), cert. 

denied, 529 U.S. 1070, 146 L. Ed. 2d 487, 120 S. Ct. 1680 (2000). Potential jurors "must be 

open-minded and persuadable, with no extreme or absolute positions regarding the 

credibility of any witness." Id. 

By asking the questions, it is apparent that the prosecution was trying to learn if 

any of the prospective jurors had "extreme or absolute positions regarding the 
Smith v. State Page 4

credibility of any witness" based on the witness's potential criminal history. Ladd, 3 

S.W.3d at 560. It is possible that the answers to these questions could lead to a 

challenge for cause under article 35.16(a)(9) based on a juror's bias. TEX. CODE CRIM.

PROC. ANN. art. 35.16(a)(9) (Vernon 2006); Ladd, 3 S.W.3d at 560 (holding that a 

prospective juror may be properly challenged for cause and removed if he cannot 

impartially judge the credibility of a witness); see also Rivera v. State, 82 S.W.3d 64, 66-67 

(Tex. App.—San Antonio 2002, pet. ref'd) (stating that if a prospective juror responded 

to a question by stating that he would automatically disbelieve a defendant's testimony 

simply because he was the defendant, that person would be stricken for cause). Thus, 

the questions meet the second Standefer prong for proper commitment questions. See 

Lydia, 117 S.W.3d at 906. Smith does not contend that the questions contained more 

facts than necessary, but only that the questions were improper commitment questions 

because they committed the venire to not considering whether the victim was “a bad 

guy, a gangster and not a saint” in their deliberations. We overrule issue one.

Improper Comments by Trial Court

Smith complains that the trial court made comments during voir dire, which

vitiated the presumption of innocence and improperly created a bias in favor of the 

victim. Smith admits he did not object to these comments, but contends that they 

constitute fundamental error, which requires no objection. He further contends that 

these comments compounded the harm from the State’s improper commitment 

questions, although we have determined that they were not, in fact, improper 

commitment questions in Smith’s first issue. 
Smith v. State Page 5

Without a contemporaneous objection, error is generally waived, and in that 

instance, an appellate court may only review fundamental error. See Jasper v. State, 61 

S.W.3d 413, 421 (Tex. Crim. App. 2001); Ganther v. State, 187 S.W.3d 641, 650 (Tex. 

App.—Houston [14th Dist.] 2006, pet. ref'd); TEX. R. EVID. 103(d). Because Smith failed 

to object at trial, the comments must rise to the level of fundamental error to be 

preserved for appeal. To support his fundamental-error argument, Smith relies 

primarily on Blue v. State. 41 S.W.3d 129 (Tex. Crim. App. 2000). In Blue, a plurality of 

the Court of Criminal Appeals held that the trial court's comments explaining to the 

jury that the defendant had attempted to enter into a plea bargain with the State and 

that the trial court would have preferred a guilty plea vitiated the presumption of 

innocence before the venire, constituted fundamental error and, therefore, required no 

objection. Id. at 132-33.

The first comments by the trial court that Smith now contends vitiates his 

presumption of innocence went as follows:

[I]n every criminal case, ..., a defendant is presumed to be innocent. That 

is, nobody has to prove – that’s another way of saying nobody has to 

prove they’re not guilty. It’s up to the prosecution to prove a defendant 

guilty, if they can.

And up until the time they do that, the jury is required to presume the 

defendant not guilty. And also, in conjunction with this right not to –

right to be presumed innocent and right not to have to prove they’re 

innocent is the right not to have to testify in order to prove your innocence 

in a criminal case.

This has -- I’ll visit this later again. This really doesn’t have any 

application in a civil case. There’s no Fifth Amendment right in civil 

cases, but we’ll get to that later. In other words, one party or the other can 

call each other’s witnesses and each other’s plaintiff and defendant in 

order to prove their case. But criminal cases, prosecution can’t call the 
Smith v. State Page 6

defendant as a witness. The defendant is not required to be a witness in 

the case because they’re not required to prove their innocence. 

To give you an example of that, suppose three witnesses got on the 

witness stand that the prosecution called and each one of those witnesses 

testified, I saw the defendant commit each and every element of the 

indictment that’s alleged in the offense. And I personally saw them do 

that and I know they did that. And the prosecution put on three witnesses 

to say that.

And the defense didn’t say anything. They didn’t cross-examine the 

witnesses. They didn’t present any witnesses of their own. They didn’t 

even call the defendant to the witness stand to say, I didn’t do what they say I 

did. In the event the defendant elects to do that, you cannot take that as a 

circumstance against the defendant. And you can’t consider it as any 

evidence against the defendant.

And if you evaluate this prosecution’s testimony and you look at witness 

number one who said I saw the defendant do all this, you may decide, 

well, that witness, when he got on the stand, was obviously intoxicated. 

I’m not even sure he understood the questions. It sounded like the 

prosecution was spoon-feeding him. The second witness, he’s absolutely 

insane. He didn’t tell the same story twice.

Even on direct examination, he kept wishy-washing around. The third 

witness, he has such an ax to grind against the defendant for whatever 

reason that he could – you know, his testimony is just tainted beyond 

belief because he just obviously really has something against the 

defendant. So I really can’t – I don’t really -- can’t really buy all the State’s 

witnesses on this case.

But you know what, the defense didn’t put on any witnesses. The defense 

– the defendant didn’t tell me he didn’t do it. And so even though the 

witnesses for the prosecution are shaky and there’s not enough to 

convince me beyond a reasonable doubt that the defendant committed the 

offense, he must have because he didn’t tell me he didn’t do so. And so, 

therefore, I’m going to find him guilty.

That’s what you can’t do. So if a defendant elects not to testify, you 

cannot take that as a circumstance against him. On the other hand, if the 

defense elects to put on a defense and suppose we had those same shaky 

witnesses from the prosecution, and the prosecution put on these shaky 

witnesses and you had the same feelings about them, saying, boy, I can’t 

wait to get back to the jury room because I’m going to find these guys, or 

whoever the defendant is, not guilty as quick as I can because the 
Smith v. State Page 7

prosecution’s evidence is just pitiful and I couldn’t find anybody guilty 

beyond a reasonable doubt on this case.

But the defense, for whatever reason, they decide not to rest because they 

want to hit that home run. They want that Guinness Book of Records, jury 

verdict in less than two seconds, or for whatever reason, they decide to put on 

a defense. And they put on witnesses and they put on the defendant. And after 

listening to the defendant and listening to their side of the case, even 

though at the first part of the case you said, shoot, I’m going to vote not 

guilty, after hearing the second part of the case and after hearing the 

second set, boy, after I hear that testimony, I’m convinced beyond a 

reasonable doubt the defendant did commit the offense.

So if a defendant does not elect to testify, you can’t take that as a 

circumstance against them. If a defendant elects to testify, then their 

testimony is just like any other testimony that may be offered in the case 

and you can consider it in determining a verdict for guilty or not guilty. 

Okay?

Reporter’s Record Volume 6, pages 55-58 (emphasis added).

Smith’s complains of the two italicized sections in the above section. He 

contends that the trial court improperly commented on his right to remain silent when 

the trial court said, “They didn’t even call the defendant to the stand to say” and “for 

whatever reason, they decide to put on a defense. And they put on witnesses and they 

put on the defendant.” Taking the statements in the context in which they were made, 

we cannot say that they constituted a comment on the Smith’s right to remain silent or 

that they vitiated Smith’s presumption of innocence. See Jasper, 61 S.W.3d at 421 

(holding that, even under the reasoning of the Blue plurality, the trial judge's comments 

would not rise to the level of fundamental error); Ganther, 187 S.W.3d at 650-51 

(concluding that, even if court of appeals were bound by the Blue plurality, the trial 

judge's comments during voir dire did not rise to the level of tainting the presumption 

of innocence or vitiating the impartiality of the jury).
Smith v. State Page 8

Smith’s other contention is that the trial court erred in making comments that 

enhanced the State’s improper commitment questions regarding the victim’s criminal 

history. The trial court clarified the State’s question to the venireperson by stating that 

because a person committed a crime in the past does not give the general public 

permission to commit a crime against him free from prosecution, later using an 

illustration of the St. Valentine’s Day Massacre when some gangsters lined other 

gangsters up on a wall and executed them and that to do so is not justifiable, but is still 

murder. No objection was lodged to the trial court making improper comments or 

demonstrating bias to the jury. Smith now contends that the trial court’s references to 

gangsters imply that he is a “guilty gangster criminal” which vitiated the presumption 

of innocence. 

We reject Smith's characterization of the trial court's comments and conclude 

from our review of the record that none of the court's complained-of comments rise to 

the level of fundamental error obviating the need to object in the trial court. See Jasper, 

61 S.W.3d at 421; Ganther, 187 S.W.3d at 650-51. Because Smith did not object to the trial 

court's comments and because the alleged error was not fundamental error, Smith's 

complaint has been waived. See TEX. R. APP. P. 33.1(a); Jasper, 61 S.W.3d at 421. We 

overrule issue two.

Admissibility of Prior Convictions

Smith filed a pre-trial motion to testify free from impeachment by his prior 

convictions. Under Texas Rule of Evidence 609(a), the credibility of a witness may be 

attacked with a prior felony conviction or a conviction that involved moral turpitude. 
Smith v. State Page 9

TEX. R. EVID. 609(a). Before the evidence is admitted, the trial court must determine that 

the probative value of the evidence outweighs its prejudicial effect to the party. Id.

In this case, we do not reach the merits of Smith's argument because he did not 

testify at trial and has not otherwise indicated what his testimony would have been. See 

Jackson v. State, 992 S.W.2d 469, 479 (Tex. Crim. App. 1999); Yanez v. State, 199 S.W.3d 

293, 303 (Tex. App.—Corpus Christi 2006, pet. ref'd); Caballero v. State, 919 S.W.2d 919, 

923 (Tex. App.—Houston [14th Dist.] 1996, pet. ref'd); Richardson v. State, 832 S.W.2d 

168, 172 (Tex. App.—Waco 1992, pet. ref'd). To preserve error on a trial court's ruling 

that permits the State to impeach a defendant with prior convictions, the defendant 

must have testified. Jackson, 992 S.W.2d at 479 (citing Luce v. United States, 469 U.S. 38, 

43, 105 S. Ct. 460, 464, 83 L. Ed. 2d 443 (1984) (holding that a defendant must actually 

testify to preserve error on improper impeachment under Federal Rule of Evidence 

609(a)).; Yanez, 199 S.W.3d at 303; Caballero, 919 S.W.2d at 923. A reviewing court is 

unable to weigh the probative value of the proffered testimony against its prejudicial 

effect without a factual record of the appellant's testimony at trial. Jackson, 992 S.W.2d 

at 479; Yanez, 199 S.W.3d at 303; Caballero, 919 S.W.2d at 923. Without such a record, 

there is no impeachment evidence for prior convictions and we cannot sufficiently 

review for error. See Long v. State, 245 S.W.3d 563, 573 (Tex. App.—Houston [1st Dist.] 

2007, no pet.); Yanez, 199 S.W.3d at 303. Therefore, we overrule Smith’s third issue.

Brady Violation

Smith’s next complaint is that the State violated the requirements of Brady v. 

Maryland regarding the production of exculpatory and impeachment evidence. Brady v. 

Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). A prosecutor has an 
Smith v. State Page 10

affirmative duty to turn over material, favorable evidence to the defense. Brady v. 

Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); Little v. State, 991 S.W.2d 

864, 866 (Tex. Crim. App. 1999). To determine whether a prosecutor's actions violate a 

defendant's due process rights, we employ a three-part test. We consider whether: (1) 

the prosecutor failed to disclose evidence; (2) the evidence is favorable to the accused; 

and (3) the evidence is material (i.e., whether a reasonable probability exists that the 

result of the proceeding would have been different if the evidence had been disclosed to 

the defense). Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000); Little, 991 S.W.2d 

at 866. When, as here, the disclosure of evidence occurs at trial, the issue becomes 

whether the tardy disclosure prejudiced Smith. Id. If Smith received the material in 

time to use it effectively at trial, his conviction should not be reversed just because it 

was not disclosed as early as it should have been. Id.

Smith contends there were two Brady violations: (1) that the State did not 

disclose the criminal history of the victim in writing until the day of trial, and (2) that 

the name of the owner of a firearm found on the ground near where Smith and his codefendant were stopped was not disclosed until near the close of the State’s case 

through a witness for the State even though the State was aware of his identity 

approximately four days prior to the witness’s testimony. However, it is apparent 

from the record that Smith knew of the victim’s criminal history prior to trial and was 

able to question him extensively about his criminal history during his testimony. He 

did not ask for a continuance at any time to investigate either of these issues. The trial 

court ruled that Smith would be allowed to recall any witness that had previously 

testified to question them about this information, although Smith did not do so. 
Smith v. State Page 11

Further, regarding the firearm, two firearms were located at that time, one of which was 

in the vehicle and was registered to Smith’s spouse. A loaded magazine fell out of 

Smith’s lap when he got out of the vehicle after law enforcement stopped him. The gun 

owned by Smith’s spouse was located in the console of the vehicle. The magazine fit 

that firearm, and the firearm had a bullet in the chamber that matched those in the 

magazine that had fallen from Smith’s lap. Additionally, Smith admitted to ownership 

of the firearm to the officer on the scene. The issue regarding the identity of the owner 

of the gun was solely related to the other firearm recovered on the ground near where 

Smith’s vehicle was stopped. Assuming without deciding that the failure to disclose the 

evidence would constitute a Brady violation, we find that Smith has made no showing 

that he was prejudiced by the tardy disclosure of the information. We overrule Smith’s 

issue four.

Adoption of Issues of Co-Defendant

Smith requested this Court to allow him to adopt his co-defendant’s issues on 

appeal. The State has objected to this. We deny this request. It is the obligation of each 

defendant to raise all of his issues for appeal in his brief. TEX. R. APP. P. 38.1(f) (“The 

brief must state concisely all issues or points presented for review.” (emphasis added)). 

Additionally, it is not the obligation of this Court to create or restructure Smith’s 

argument for him to make it fit his case, which would likely be necessary in an analysis 

of issues raised by his co-defendant and not by him.

Conclusion

We find that the State did not ask improper commitment questions to the venire 

panel. We also find that any error regarding the trial court’s comments is not 
Smith v. State Page 12

fundamental error, and because there was no objection, that issue is waived. We find 

that the trial court did not abuse its discretion in denying Smith’s motion to testify free 

from impeachment by his prior convictions. We find that Smith did not establish that 

he was prejudiced by any Brady violation. We deny Smith’s request to adopt his codefendant’s issues on appeal. We affirm the judgment.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

Affirmed

Opinion delivered and filed November 25, 2009

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