Opinion issued December 11, 2014

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-13-00994-CR

———————————

ANTHONY SOREL HAYWOOD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 176th District Court

Harris County, Texas

Trial Court Case No. 1373686

MEMORANDUM OPINION

Appellant Anthony Sorel Haywood was charged by indictment with 

aggravated assault of complainant Chris Charles by threatening him with imminent 

bodily harm by using and exhibiting a firearm. A jury found Haywood guilty of 

the lesser-included offense of deadly conduct by discharge of a firearm. The trial 
2

court found the indictment’s enhancement paragraph true, and sentenced Haywood 

to six years’ imprisonment. In two issues, Haywood contends that the trial court 

erred in ruling that Haywood opened the door to his custodial statements and in 

denying seven challenges for cause during voir dire. We affirm. 

Background

The complainant Charles drove to Haywood’s apartment intending to 

purchase marijuana. Charles went inside Haywood’s apartment while his 

girlfriend, Latoya Simmons, and her six-year old son remained in the car. Charles 

and Haywood disagreed about the price of the marijuana. Charles testified he left 

the apartment and Haywood followed him outside. Haywood fired a gun as the car 

drove away. The bullet hit Charles’s car, but no one inside was hit.

Simmons called the police, and Charles directed them to Haywood’s 

apartment. Officer Fuhlbrigge of the Houston Police Department detained, 

handcuffed, and took Haywood outside of the apartment. When Officer 

Fuhlbrigge asked Haywood whether he had a gun, Haywood said that he gave the 

gun to a friend. Haywood also told Officer Fuhlbrigge that he fired his gun at 

Charles because he was afraid that Charles had a knife. 

The trial court suppressed Haywood’s statements. When Haywood crossexamined Officer Fuhlbrigge, Haywood sought to show the jury that Officer 

Fuhlbrigge conducted a sloppy investigation. In response to counsel’s questions, 
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Officer Fuhlbrigge admitted that his investigation was not exhaustive: he did not 

collect shell casings, conduct ballistic testing on Charles’s car, conduct a gunshot 

residue test on Haywood’s hands, or obtain a warrant to search Haywood’s 

apartment. When Haywood’s counsel asked Officer Fuhlbrigge why he did not 

conduct a more thorough investigation, Officer Fuhlbrigge responded, “we just 

didn’t, sir.” He also said, “Based on the statements that we received that day, sir, 

we thought that was enough, enough evidence.” 

The trial court ruled that Haywood opened the door to the admission of 

Haywood’s previously-suppressed statements and allowed the prosecutor to ask 

Officer Fuhlbrigge “very narrow and direct questions about why no search warrant 

[was sought] and why not bag his hands.” Officer Fuhlbrigge testified that he did 

not perform these tasks because Haywood had admitted to him that he fired a gun 

at Charles’s car and then gave the gun to a friend. 

Challenges of Jurors for Cause

In his second issue, Haywood contends that the trial court erred by denying 

him seven additional challenges for cause. 

A. Standard of Review

We review a trial court’s ruling on a challenge for cause with “considerable 

deference” because the trial court is in the best position to evaluate the 

venireperson’s demeanor and responses. Russeau v. State, 171 S.W.3d 871, 879 
4

(Tex. Crim. App. 2005); Blue v. State, 125 S.W.3d 491, 497 (Tex. Crim. App. 

2003). “When the record does not contain a clearly objectionable declaration by 

the venireperson, or the record demonstrates a vacillating or equivocal 

venireperson, we accord ‘great deference’ to the trial judge who had the better 

opportunity to see and hear the person.” Swearingen v. State, 101 S.W.3d 89, 99 

(Tex. Crim. App. 2003). 

We will reverse a trial court’s ruling on a challenge for cause “only if a clear 

abuse of discretion is evident.” Blue, 125 S.W.3d at 497 (citation omitted). We 

review the totality of the voir dire testimony to determine whether it supports the 

trial court’s finding with respect to whether the prospective juror is able to follow 

the law as instructed. See King v. State, 29 S.W.3d 556, 568 (Tex. Crim. App. 

2000); Murphy v. State, 229 S.W.3d 334, 339 (Tex. App.—Amarillo 2006, pet. 

ref’d).

B. Applicable Law

A veniremember who cannot presume the defendant’s innocence is 

challengeable for cause based upon a bias against the law. See Ladd v. State, 3 

S.W.3d 547, 560 (Tex. Crim. App. 1999) (citing Banda v. State, 890 S.W.2d 42, 55 

(Tex. Crim. App. 1994) (en banc)); see also TEX. CODE CRIM. PROC. ANN. art. 

35.16(c)(2) (West 2006) (defendant may make challenge for cause when 

prospective juror has bias against the law). For challenges based upon an alleged 
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bias against the law, the relevant inquiry is whether the veniremember’s beliefs 

would “prevent or substantially impair him from following the law as set out in the 

trial court’s instructions and as required by the juror’s oath.” Swearingen, 101 

S.W.3d at 99 (citing Lagrone v. State, 942 S.W.2d 602, 616 (Tex. Crim. App.

1997)).

Before a prospective juror 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. Jones v. State, 982 S.W.2d 386, 390 (Tex. Crim.

App. 1998). The proponent of a challenge for cause has the burden of establishing 

his challenge is proper. Feldman v. State, 71 S.W.3d 738, 747 (Tex. Crim. App. 

2002). The proponent does not meet his burden until he has shown that the 

venireperson understood the requirement of the law and could not overcome his 

prejudice well enough to follow it. Id.

C. Analysis

During voir dire, the trial court advised the veniremembers that they “must 

be able to presume a person innocent.” Haywood’s counsel also told the 

veniremembers:

Now, the presumption of innocence, as the judge talked about, is that 

the State has the entire burden. The defendant has no burden 

whatsoever and therefore he’s presumed innocent. Right? If you-all 

had to vote right now as to whether he’s guilty or innocent, Mr. 

Haywood as he sits here right now is what?
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The veniremembers responded in unison, “Innocent.” 

During vior dire, Haywood’s counsel asked the veniremembers to rank their 

“ability” to presume Haywood’s innocence based on a range of 0–10, with zero 

meaning the juror presumes Haywood innocent and ten meaning the veniremember

presumes him to be “very guilty”:

[H]ow would you rate your ability to presume Mr. Haywood to be 

innocent? All right. And let me be specific in the understanding of 

this. To me, in order to be qualified to sit in the jury box your answer 

should be zero, right? If I give you a range of zero to ten, zero being I 

can presume him to be innocent, and ten being I presume him to be 

very guilty, right. So that’s the range. Zero I presume him to be 

innocent; ten, my ability to presume his innocence is not good because 

I think he’s very guilty, right, just as he sits here today.

***

So, again, the presumption of innocence is zero, and in order to be on 

the jury, it’s my contention you need to say zero, right? But I want 

you to say whatever number you think. If your ability to presume him 

to be innocent right now is zero say zero. If it’s somewhere in 

between zero and ten give me that number, zero being innocent, ten 

being very guilty. 

39 of the 65 veniremembers ranked themselves at something other than zero. 

The parties agreed to strike 19 of those 39. Haywood’s counsel challenged the 

remaining 20 for cause, but the trial court denied these challenges: “I think that 

your question asks them about rating their ability so it doesn’t mean that they’re 

not presuming [Haywood] innocent.” Seven of the 20 veniremembers served on 

the jury. 
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Haywood contends that the seven veniremembers’ nonzero answers 

established their inability to follow the law regarding the presumption of innocence 

and that the trial court erred in denying his challenges for cause. This court 

recently addressed a similar issue in Donaldson v. State, No. 01-12-00270-CR, 

2014 WL 1004247 (Tex. App.—Houston [1st Dist.] Mar. 13, 2014, pet. ref’d)

(mem. op., not designated for publication). In Donaldson, appellant’s trial counsel 

advised the veniremembers to presume Donaldson innocent and later asked if they 

had “some position about whether [Donaldson was] presumed to be innocent.” Id. 

at *4. Donaldson’s counsel told the veniremembers to give an answer based on a 

scale of zero to ten where ten means that the veniremember “absolutely knows he’s 

guilty.” Id. On appeal, Donaldson argued that the veniremembers that provided a 

nonzero answer showed their inability to follow the presumption of innocence law 

and that, therefore, the trial court erred in denying his challenges for cause. Id. at 

*5. Following our sister court’s decision in Barnes v. State, No. 14-04-00478-CR,

2005 WL 2420375 (Tex. App.—Houston [14th Dist.] Aug. 25, 2005, no pet.)

(mem. op., not designated for publication), we held that the trial court did not 

abuse its discretion in denying Donaldson’s challenges for cause because counsel’s 

question “amounted to no more than a survey of veniremembers’ personal 

feelings.” Donaldson, 2014 WL 1004247, at *5. The Donaldson court reasoned

that “counsel failed to prove that the prospective jurors who gave nonzero answers 
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were properly challengeable for cause because he did not ask whether they could 

follow the law despite their prejudices.” Id.; see Barnes, 2005 WL 2420375, at *3

(trial court did not err in denying appellant’s challenges because counsel failed to 

ask challenged veniremembers whether their personal beliefs would make them 

unable to presume appellant’s innocence). 

Here, Haywood’s counsel asked the veniremembers to “rate [their] ability to 

presume Mr. Haywood to be innocent.” His complaint fails for the same reason 

described in Donaldson. Counsel failed to ask whether any of the veniremembers 

who provided nonzero answers could follow the law on the presumption of 

innocence despite their prejudices. See Donaldson, 2014 WL 1004247, at *5. We 

thus conclude that Haywood did not meet his burden to show that the 

veniremembers understood the law and could not overcome their prejudices well 

enough to follow it. See Feldman, 71 S.W.3d at 747 (proponent does not meet 

burden until he has shown that venireperson understood requirement of law and 

could not overcome his prejudice well enough to follow it). Accordingly, the trial 

court did not abuse its discretion in denying Haywood’s challenges for cause. 

We overrule Haywood’s second issue.
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Opening the door to Haywood’s oral statements

A. Standard of Review and Applicable Law

We review a trial court’s ruling on admissibility under an abuse of discretion 

standard. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). 

Evidence that is otherwise inadmissible may be admitted to correct a false 

impression left by the questioning of a witness. See Wheeler v. State, 67 S.W.3d 

879, 885 (Tex. Crim. App. 2002). Thus, inadmissible evidence may be admitted if 

the party against whom the evidence is offered opens the door, provided the 

evidence does not stray beyond the scope of the invitation. Schultz v. State, 957 

S.W.2d 52, 71 (Tex. Crim. App. 1997). This is true even of statements that are 

inadmissible because they constitute custodial interrogations obtained without 

Miranda warnings. See Harris v. New York, 401 U.S. 222, 224–25 (1971) 

(defendant opened door to statement taken in violation of Miranda to be used for 

impeachment purposes).

B. Analysis

In his first issue, Haywood contends that the trial court erred in admitting his 

oral statements in which he admitted to Officer Fuhlbrigge that he fired the gun at 

Charles’s car and then gave the gun to his friend. The State argues that Haywood 

opened the door to their admission by asking Officer Fuhlbrigge why he failed to 

take certain steps during the investigation. The State argues that this line of 
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questioning created the false impression before the jury that Officer Fuhlbrigge’s 

investigation was shoddy. We agree with the State. 

Haywood’s counsel asked Officer Fuhlbrigge whether he bagged 

Haywood’s hands to preserve evidence to conduct a gunshot residue test. Officer 

Fuhlbrigge testified that he did not. When Haywood’s counsel asked why 

Fuhlbrigge did not, Officer Fuhlbrigge testified “we just didn’t, sir.” Haywood’s 

counsel also asked Officer Fuhlbrigge why he did not obtain a search warrant for 

Haywood’s apartment, and Officer Fuhlbrigge responded, “Based on the 

statements that we received that day, sir, we thought that was enough, enough 

evidence.” Because Haywood’s statements were suppressed, Officer Fuhlbrigge 

was unable to explain to the jury that there was no need to test Haywood’s hands 

for gunshot residue or to search his apartment for the gun because Haywood had 

admitted firing the gun and told Officer Fuhlbrigge that the gun was not inside 

Haywood’s apartment. We thus conclude that Haywood’s counsel’s questions 

regarding why Officer Fuhlbrigge did not bag Haywood’s hands or obtain a search 

warrant for Haywood’s apartment left a false impression before the jury that 

Officer Fuhlbrigge conducted a shoddy investigation. Accordingly, Haywood 

opened the door to the admission of his oral statements. See Sandoval v. State, No. 

14-05-00389-CR, 2006 WL 3433805, at *1–2 (Tex. App.—Houston [14th Dist.] 

Nov. 30, 2006, pet. ref’d) (mem. op., not designated for publication) (appellant 
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opened door to admission of his oral statement that he purchased drugs to explain 

detective’s failure to request handwriting analysis and correct false impression 

with jury). 

Haywood contends that his statement should not have been admitted even if 

he opened the door because the statement was “inadmissible in its own right.” In 

support of his argument, Haywood cites to a three-judge plurality opinion in Kipp 

v. State, 876 S.W.2d 330 (Tex. Crim. App. 1994). That opinion reasons that 

opening the door to evidence does not render that evidence admissible “in any 

form, including hearsay.” Id. at 337. But plurality opinions are not binding 

precedent. Vasquez v. State, 389 S.W.3d 361, 370 (Tex. Crim. App. 2012). 

Accordingly, we are not required to follow the plurality opinion in Kipp. See id.

(court of appeals was not required to follow plurality opinion because it has “no 

binding precedential value”). Further, even were it a majority opinion, the 

plurality analysis in Kipp does not support Haywood’s argument, because 

Haywood’s counsel opened the door to the admission of Haywood’s custodial

statement, and his statement was otherwise admissible as a statement by a party 

and an admission against interest.

Accordingly, we hold that the trial court did not abuse its discretion in 

admitting Haywood’s statements. See Harris, 401 U.S. at 224–25 (defendant 

opened door to statement taken in violation of Miranda to be used for 
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impeachment purposes); Walker v. State, No. 01-98-00394-CR, 1999 WL 826203, 

at *5 (Tex. App.—Houston [1st Dist.] Sept. 14, 1999, pet. ref’d) (opin., not 

designated for publication) (“We note that while this evidence would normally be 

inadmissible because it constituted custodial interrogation without Miranda 

warnings, counsel’s questions created an incomplete picture of the evidence and 

incriminating facts; therefore, the door was opened for admission of appellant’s 

statement.”); see also Sandoval, 2006 WL 3433805, at *1–2 (appellant opened 

door to otherwise inadmissible oral statements to police that trial court had 

suppressed). 

We overrule Haywood’s first issue. 

Conclusion

We affirm the trial court’s judgment. 

Rebeca Huddle

Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).