Opinion issued October 15, 2015

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-13-00493-CR

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RYAN MATTHEW STAIRHIME, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Case No. 1387371

MEMORANDUM OPINION

Appellant, Ryan Matthew Stairhime, was charged by indictment with 

murder.1

 Appellant pleaded not guilty. The jury found him guilty and assessed 

punishment at 43 years’ confinement. In his original brief, Appellant challenged

 1 See TEX. PENAL CODE ANN. § 19.02(b) (Vernon 2011).
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the trial court’s (1) permitting the State to impeach the testimony of a witness to 

the incident, (2) excluding his impeaching evidence of the same witness, (3) failure 

to include in the application portion of the jury charge a definition present in the 

abstract portion of the jury charge, and (4) restriction of his voir dire examination.

On original submission, we overruled all four issues. Stairhime v. State, 439 

S.W.3d 499, 504–07 (Tex. App.—Houston [1st Dist.] 2014, pet. granted) 

(Stairhime I). For the fourth issue, we held that Appellant had waived any error 

related to the issue raised. Id. at 507. Stairhime filed a petition for discretionary 

review of our judgment with respect to the fourth issue, and the Texas Court of 

Criminal Appeals granted it. Stairhime v. State, 463 S.W.3d 902, 903 (Tex. Crim. 

App. 2015) (Stairhime II). The court reversed, holding the facts upon which we 

relied did not support a determination of waiver. Id. at 908. The court has 

remanded the case back to this Court for consideration of the remaining arguments 

in Appellant’s fourth issue. Id. 

We affirm.

Background

The only issue remaining for review concerns the trial court’s restriction of 

Appellant’s voir dire examination. See id. Accordingly, we provide only the 

relevant information for that issue.
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Appellant and his girlfriend, Kelsey Wright, got into a heated argument on 

July 18, 2010. Wright called a friend and former boyfriend, Stephen Babb, to pick 

her up. When Babb arrived, Appellant stabbed him in the chest and fled. Babb 

died, and Appellant was charged with murder.

During voir dire at trial, Appellant’s counsel began asking the jury about 

Appellant’s right not to testify at trial. The following exchange occurred:

[DEFENSE COUNSEL]: Juror No. 1.

VENIREPERSON: What do you want to know? You want to know 

how I feel about it?

[DEFENSE COUNSEL]: What I want to know, if Ryan does not take 

the stand, are you going to use that as evidence of guilt? In 

other words, do you have to hear from him?

VENIREPERSON: No, I don’t.

[DEFENSE COUNSEL]: Juror No. 2?

VENIREPERSON: No.

[DEFENSE COUNSEL]: Juror No. 3?

VENIREPERSON: Yes, I would like to hear from him.

[DEFENSE COUNSEL]: We all would like to.

VENIREPERSON: Okay. Yeah.

[DEFENSE COUNSEL]: I think we’re all in agreement we would like 

to hear from the defendant, right? Okay. And that’s fair. That’s 

human nature.

VENIREPERSON: So you’re asking if we don’t hear from him, are 

we going to hold that against him?
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[DEFENSE COUNSEL]: Exactly. In other words, do you have to hear 

from him to be a fair juror?

[PROSECUTOR]: Judge, I’m going to object to the form of the 

question.

THE COURT: Sustained.

[DEFENSE COUNSEL]: I’ll rephrase it.

THE COURT: Before you answer, sir, go ahead and rephrase that 

question, [DEFENSE COUNSEL].

[DEFENSE COUNSEL]: Okay. I will.

If Ryan refuses to testify, can you put that aside, out of your mind and 

be fair?

[PROSECUTOR]: I’m going to object again to the form of the 

question.

THE COURT: Sustained.

[DEFENSE COUNSEL]: Do you have to hear from the defendant?

[PROSECUTOR]: Again, I object to the form of the question. It’s 

whether or not they would use it as evidence of his guilt.

THE COURT: Sustained.

[DEFENSE COUNSEL]: Are you going to use it as evidence of his 

guilt if he does not testify?

VENIREPERSON: Yes.

Appellant’s counsel then asked the remaining prospective jurors the same 

question. In total, ten prospective jurors said they would consider Appellant’s 

failure to testify as evidence of guilt. Nine of them were struck for cause. The 
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tenth was too far down the list of jurors to have a chance of being on the jury 

panel.

During the trial, Appellant testified, both in the guilt-innocence phase and in 

the punishment phase. In the guilt-innocence phase, Appellant admitted to 

stabbing Babb. Appellant testified that he saw Babb slap Wright. According to 

Appellant, Babb then threatened him and reached for something under his seat. 

Appellant claimed he became scared for himself and for Wright and attacked Babb

as a result.

Voir Dire

In his fourth issue, Appellant argues the trial court abused its discretion by 

preventing Appellant from asking the jury questions concerning his right not to 

testify. 

In its opinion, the Court of Criminal Appeals clarified that the State had 

raised other arguments for finding waiver and that its opinion did not dispose of 

those. Id. at 908 n.3. We begin, then, by addressing the State’s remaining waiver 

argument. 

Appellant argues that the trial court denied him his right to ask the jury 

proper voir dire questions regarding Stairhime’s right to remain silent. The State 

argues that Appellant failed to preserve this issue because he did not object. In 

order to preserve a complaint for appellate review, the record must show that “the 
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complaint was made to the trial court by a timely request, objection, or motion” 

and that the trial court ruled on the complaint. TEX. R. APP. P. 33.1(a). 

It is established in the record that the State objected multiple times to how 

Appellant’s questions phrased the questions about Appellant’s right to remain 

silent. The State appears to argue that, in order to preserve this issue for appeal, 

Appellant was required to object to the trial court’s sustaining the State’s 

objections. We find no justification for this argument. Rule 33.1 requires only that 

“the complaint was made.” Id. The trial court sustained objections to Appellant’s 

counsel’s formulation of questions about the right to remain silent, requiring 

Appellant’s counsel to reformulate the question. If these rulings were erroneous, 

then the trial court prevented Appellant from asking proper voir dire questions. 

This is Appellant’s complaint on appeal. We hold it has been preserved.

The State also argues that the objections were raised only when Appellant’s 

counsel was asking Prospective Juror Number Three questions. After that,

Appellant’s counsel asked the remaining prospective jurors the question in the 

form the trial court had permitted. The State indicates that, as a result, any error 

has only been preserved as it applies to this prospective juror and not to the panel 

as a whole. We disagree.

For preservation of error over the admission of evidence, there is a general 

rule that the party must object each time the evidence is admitted. Kelly v. State, 
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321 S.W.3d 583, 598 (Tex. App.—Houston [14th Dist.] 2010, no pet.). When a 

trial court has just overruled the objection, however, the objecting party is not 

required to constantly repeat the objection when repeated objections would be 

futile. Id.; see also Graham v. State, 710 S.W.2d 588, 591 (Tex. Crim. App. 1986)

(holding complaining party is not required to make futile repeated objections once 

it is clear trial court has made testimony admissible); Cardenas v. State, 787 

S.W.2d 160, 162 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d) (holding party 

is not required to make futile objections after trial court has just overruled valid 

objection). We see no reason to create a different rule here. If the trial court found 

the formulation objectionable for one prospective juror, there is no reason to 

conclude the trial court would have found it acceptable for any other prospective 

juror. Repeating the same excluded questions to all 100 prospective jurors would 

have been duplicative and futile. We hold the objection has been preserved for all 

prospective jurors.

Turning to the substance of the argument, we do not need to determine 

whether the trial court’s rulings were actually erroneous. This is because, even 

assuming the rulings were erroneous, any error is harmless. 

Even when a court finds error in a trial court’s ruling, we must review the 

error for harm. See TEX. R. APP. P. 44.2(a)–(b). In general, errors in criminal 

cases are divided between constitutional errors and non-constitutional errors. See
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id. For constitutional errors, “the court of appeals must reverse a judgment of 

conviction or punishment unless the court determines beyond a reasonable doubt 

that the error did not contribute to the conviction or punishment.” TEX. R. APP. P.

44.2(a). For non-constitutional errors, any error “must be disregarded” unless the 

error affects Appellant’s substantial rights. TEX. R. APP. P. 44.2(b).

Appellant argues that the trial court’s exclusion of his preferred form for 

questioning the prospective jurors about his right to remain silent is constitutional 

error. For support, Appellant relies on Jones v. State, 223 S.W.3d 379, 382–83

(Tex. Crim. App. 2007), rev’d Easley v. State, 424 S.W.3d 535, 537, 541 (Tex. 

Crim. App. 2014). Since Appellant wrote his brief, however, Jones has been 

overruled. See Easley, 424 S.W.3d at 537, 541. 

In Easley, the Court of Criminal Appeals held that erroneously limiting a 

party’s voir dire examination is non-constitutional unless the error “is so 

substantial as to warrant labeling the error as constitutional error.” Id. at 541. 

Here, the restrictions involved the form of questions for one general topic: the right 

to remain silent. The trial court did not exclude questioning on this topic in its 

entirety, just in the form of the question. We hold that any error in this restriction 

is not so substantial as to warrant labeling the error as constitutional. See id. 
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For non-constitutional error, we must disregard the error unless the error 

affect’s the party’s substantial rights. TEX. R. APP. P. 44.2(b). In determining 

whether an error affected a party’s substantial rights, we must 

consider everything in the record, including any testimony or physical 

evidence admitted for the jury’s consideration, the nature of the 

evidence supporting the verdict, the character of the alleged error and 

how it might be considered in connection with other evidence in the 

case, the jury instructions, the State’s theory and any defensive 

theories, closing arguments, voir dire, and whether the State 

emphasized the error.

Easley, 424 S.W.3d at 542 (internal quotations omitted).

As we have noted, Appellant’s questioning about his right to remain silent 

was restricted only as to its form. Appellant was ultimately allowed to ask the 

prospective jurors if they would use his failure to testify as proof of guilt. Ten of 

the prospective jurors said yes. Nine of those were struck for cause. The last had 

no chance of being on the panel. 

Significantly, Appellant testified at trial. Even assuming Appellant’s other 

question formats could have elicited further bias against a defendant who does not 

testify, any error was, if not rendered moot, severely diminished by Appellant’s 

decision to testify. The only party to emphasize the topic of the right to remain 

silent was Appellant. During closing argument, Appellant’s counsel emphasized 

that Appellant took the stand. Specifically, his counsel argued, “One thing about 
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Ryan, he took the stand. He wanted to. He’s wanted to tell his side since this 

happened.”

Finally, the weight of the evidence against him further diminishes any harm 

Appellant may have suffered. During his testimony, Appellant admitted to 

stabbing Babb. The main dispute between the parties involved whether Appellant 

acted in self-defense. Appellant was the only witness to present evidence 

suggesting he was acting in self-defense. The jury necessarily rejected this claim. 

Limitations on questions about the right to remain silent during voir dire were not 

likely to have impacted the jury’s determination of credibility about self-defense

when Appellant actually did testify.

Considering the record as a whole, we hold any error in the trial court’s 

restrictions on questioning the prospective jurors about the right to remain silent 

did not affect Appellant’s substantial rights. We overrule Appellant’s fourth issue.

Conclusion

We affirm the judgment of the trial court.

Laura Carter Higley

Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.

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