## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

___________________________ No. 02

- 19

- 00384

- CR

_____ ________________

______

On Appeal from the 78th District Court Wichita County, Texas Trial Court No. 61,080

- B
Before Sudderth, C.J.; Womack and Walker, JJ. M emorandum Opinion by Justice Womack 

### S TEPHEN 

### M E LVIN 

### B ONDS 

### , Appellant

V


### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION
I. I NTRODUCTION Appellant Step hen Melvin Bonds appeals his convi ction for felony delivery of methamphetamine. In two issues, he complains of the tri al court’s denial of his challenge of a juror for cause and of its admission of certain extraneous

- offense evidence during the punishment stage. Because t he trial court did not err by denying the challenge for cause and allowing the evidence, we affirm th e trial c ourt’s judgmen t as modified to correct a cler ical error

. II. B ACKGROUND Bonds was charged with delivering betwe en four and 200 grams of a control led substance after he sold thirteen gr ams of methamphetamine to an undercover police
officer

. See T ex. Health & Safety Code Ann. § § 481.102(6), .112(a ), (d). A jury found him gu ilty , and the tr ial court senten ced him to twenty

- five years ’ incarceration.
Be cause his appeal relates only to voir dire and the pu nishment phase, our discussion
of the fa cts w

ill be limit ed.
A
. Voir Dire Early in voi r dire, the prosecutor posed a h ypothetical , asking a pros p ective juror

— Venir em ember Watson

— if h e would be “itching to get after someone ” accused of burglarizing vehicles if somebody had recently broken i nto Watso n ’ s vehicle

. Watson answered , “If he was proven guilty, sure. ”3

Later, Watson admitted that h is brother and sis ter had both st ruggled with methampheta mine addiction, so he had witnessed its effects firsthand. Specifically, he

state d, “ And it affects the ir li ves , but it affects every life around them. ” The
prosec utor and Watson then shared the fo llowing ex change: [Prosecutor]: Now , would you be able to set that aside and look at the facts in this particular case and judge this case base d on

- - [ Watson ]: I wo uld like to think I could. It ’s still in the back of my head, you kn ow, so it ’s always going to be there. [Prosecutor]: Sure. Right. The thing is, you know, part of the jury s ystem means that we ’r e asking for real people from t he community , and th ere ’s certain things you mi ght not be able to get out of t he back of your head. But could y ou commit to holding the State to its burden and requiring us to prove each element beyond a reasonable doubt and make your determination, ultim ately, based on t he facts presented in court? [ Watson ] : I would like to think I could do that , yes. [Prosecuto r]: And if you ’re ordered to by the judge, would you be able to do that? [ Watson ]: Sure.
T he prosecutor also asked Watson, “ If you had to han d down a verdict rig ht this minute, what would your verdict be? ” Watson replied , “ Well, it would have to be not guilty. ” Bonds challenged Watson for cause, arguin g that he would be un able “ to disregard his personal involvement and family in volvement with methamphetamin e

usa ge when considering the evidenc e a nd, thus, he wou ld not be able to be a fair and impartial juror. ” Though Bonds ’s counsel referred t o Watson ’s “demeanor ” and4

“body language , ” he did not describe anything for the rec ord. The trial court called
Watso n to the bench for a conference wit h Bonds ’s counsel , the prosecutor, and the
trial court: [Bond s ’s counsel]: . . . I believe yo u told us that there was some family or personal issues involving methamphetamine that you said you would
s till have in the bac k of your mind when considering the evidence in this case. I think you also said that you would like to think you could disregar d those when considering the evidence and deliberating on the case or being a juror on this case, so I just need to put a finer poin t on that

- -

. . . .

- - an d ask you if you t hink that family or personal involvement that you ’ve had with respect to dru g usage or your family members, if that would prevent you from fairly and impartially deliberating on the case or being able to keep that out of t he back of your m ind when decid ing how to be a juror? [ Watson ]: Okay. Well, I think what I said is I ’d try m y best to do that or I would think I could do that. I mean

- - You know, I mean, all I can do is say that I would try to keep it o ut, but it ’s t here. I mean, i t ’s always there

. But the evidence is the evidence . I ’ll go with that.

. . . . [Bate s ’s Co unsel]: I hate to put you on the spot, but are you saying you cannot commit to keeping that out of the back of your mind when consi dering this ev

idence? [ Watson ] : I guess just th e whole case is going to be in the back of my mind, but the meth part of it will probabl y be there . I mean, I ’d like to think I could he ar the evidence and go by that. [Bates ’s Counsel]: So to put it on th e other side o f the co in , coul d you commit to di sregarding any of those personal or family issues when deciding the case? [ Watson ]: I would like to think I could, yeah . That ’s all I can say is I think I ’ll try to do that.5 [Bates ’s Counsel]: I und ersta nd. I ’m not t rying to attack you. [ Watson ]: O kay. I think I ’ve said that two or three times. [Bate s ’s Counsel]: Just t o put a finer poin t, you cannot commit to that, to disregarding any of your family or personal issues when decidin g the e v idenc e i n this case? [ Wa tson ]: Uh

- - [Prosecutor]: Wel l, may I , Judge? THE COURT: Y ou may. [Prosecutor]: Again, you ’re not a rob ot. You don ’t have to say that nothing about your family situation is never going to en ter your mind. I think I already asked you this, but can you commit to fo llowing the Judge ’ s instructions? [ Watson ]: I can. [Prosecutor]: And base your verdict on th e evidence, solely on the evidence that ’s presented here in court? [ Watson ]: Ye ah, I think I can.

. . . . THE COURT: Okay, the C o urt will conside r [ Watson ] to have been rehabilitated with regard to the concerns of the defense and de ny the stri ke for cause. After the trial court denied Bonds ’s challenge for cause on Watson , Bonds used a peremptory strike to remove Watson f rom consi deratio n. He a lso requested an
additional peremp t ory strike i n order to strike a nother pot ential juror (Juror Number 12) , arguing that if the trial court had granted his challenge f or cause on Watson , he would have used his peremptory s trike on Juror N umb er 12

. The trial court denied6

his request

. Juror Number 12 was selecte d for the jury panel , and after a s ingle

- day trial, the jury found Bonds guilty

. B
. Punishment P h ase Bonds elected to hav e punishment ass essed by the trial court. During the
p unish ment hearing, the State introduced eviden ce of multiple extran eous offenses, including a prior robbery c onviction, testimony and body

- camera recordings of an arrest of Bonds when he absco nded during his trial, and testimo ny regarding a traffic
stop of Bond s driving a vehicle in which police found methamphetamine and drug paraphernalia. The latter is the subject of Bonds ’ s se cond issue on a ppeal.
Wi chita Fa lls Polic e Offic er Ton y Ozuna test ified that in April 2019, as part of his work with the organiz ed

- cr im e unit, he participated in an investigation of Bonds. As part of that investigation, he was surveilling Bonds ’ s home wh en he observed
Bonds le av e his home , driv e to another house , and thirty minutes after entering that house, get ba ck into his v ehi cle w i th two more occupants. He asked another officer
to conduct a traffic stop, and that officer pulled Bonds ’ s c ar over in a convenience

s tore parking lot

. Officer Aaron New testified that he a ssisted with the stop, particularly the search of the vehic le af ter Bonds admitted to the existence of drug paraphernalia inside. Offi cer New discovered t wo baggies of meth amphetamine , three empty plastic baggies, and a homemade methamph etamine bon g containing

“ methamphetamine shards

. ” The baggies of methampheta mine were found in the
front

- seat area , bet

ween the center console and the pa ssen ger ’ s seat. None of the7

men admitted that the methamphetamine w as theirs. Offi cer O zuna testified that the packaging of the suspected m e th and the empty baggies were consist ent w ith the

street

- level sale and transportation o f methamp heta mine.
In Bonds ’ s counsel ’ s closing argument, he objected to the trial court ’ s consideration of the April 2019 incident on the basis that the State had not proven the

ext raneous offense

— his a llege d possession of metha m phet amine

— b eyon d a reasonable dou bt. The trial court overruled the objection, opini ng that “ the drug s found in the car on that day were in possession of all three of the persons in the car , ” and stating that it was s atisfied tha t the State p rov ed beyond a reas onable doubt that Bonds was one of the persons in possession of th e drugs. T he t rial court assessed a 25

- year sentence
. III. D ISCUSSION
A
. Challenge for C a use In his first issue, Bonds argues that the trial cou rt erred b y de n ying his challenge for cause against Watson because he was biased as a matter of law. He points to Watson ’s statements that his brother ’s and sister ’s methamphetamine problems would “always ” be in the back of his m ind , equat ing it to an “absol ute
po s itio n he st aked out regarding his family problems ” and arguing that he was
therefore be yond re habilitation

. He also takes issue with the pro secutor ’s statement
of “you don ’t have to say that nothing about your f ami ly situation is never going to

ent er you r min d. ”8

In order to successfully challenge a juror f or cause, a party must establish that the veniremember held a bias against the party
. Tex. Code Crim. Proc. Ann.

art. 35.16 ( a)(9) ; Tracy v. St

ate , 597 S. W.3d 502 , 512 (Tex. Crim. App. 2020). The test is

w hether the bias or prejudice would substantially i mpair the prospective juror ’s ability to carry out his oath and follow instr uctions in accordance with the law. Tracy , 597 S.W.3d at 512. Bi a s e xists as a matter of law if a juror ad mits that he is b i ased for or against the defendant. Anderson v. State , 633 S.W.2d 851 , 854 ( Tex. Crim. App. [Panel Op.] 1982). I f bias or preju dice is not established as a matter of law, the trial
court h as disc r eti on to determine whether it exists to s uch a degree that a ju ror is disqualified. Id.
W e revie w a trial court ’s d ecision to grant o r deny a challenge for cause for an
abuse of discretion and consider the record as a whole. Tracy , 597 S. W. 3d at 512

. W e af ford considerable deference to it s decision because it i s in the best position to
evaluate a v enir emember ’s dem eanor and responses , particularly when the
veniremember ’s answers are “ ambiguous , vacillating, unclear, or contr adictory. ” Id

. Contrary to Bond s ’s con tentions of bias a s a matter of law , Watson di d not
exp ress any direct bias against Bonds

. Th at sort of bias is only established when a j uror unequivocally states that he will not be able to follow the law becau se of his bias.
See Sc ott v. State , 419 S.W .3d 698 , 704 n.7 ( Tex. App.

—

Texarkana 2013, no pet.) ( “ Only if the juror indic ates he cannot b e fair and impartial is bias established as a
matter of law. ”) ; Ewing v. State , No. 02

- 05

- 00039

- CR, 2006 WL 1791597, a t *5 (Tex.9

App.

— Fort Worth June 29, 2 006 , no pet.) (mem. op ., not designated for publi cati on) (hold ing venire member was not biased as a matte r of law though he initially hesitated
and said he did not “think ” he could fairly consider the minimum pu ni shment ). We
therefore defer to the trial court ’s rul ing

. See Anderson , 633 S.W.2d at 854.
Bef ore reaching the sub stan tive nature of the proceedi ngs, Watson intimated that he could only find someone gui lty if proven so. L ater, d espite noting that h e ma y have his brother ’s an d sister ’s meth amp heta mine struggles in the back of his mi nd, Watson repea tedly agree d tha t he would consider the ev idence and follow the trial

court ’s instructions. We disagree with Bonds ’s asse rtion that the situatio n here is like
that in Comeaux v. State in whi ch the Beaumont co urt held that the p otential juror ’s
answers dem onstrated bi as ; the p otential juror in that case was n ever asked if he could follow the law that would be given in the charge. 413 S.W. 3d 176, 18 3 (Tex. App.

— Beaumont 2013 ), aff

irmed 445 S.W.3d 745 (Tex. Crim. App. 2014) . I n this ca se, Watson affirmed mo re than once tha t he would follow the law as given ; Co m eaux is
therefore easily distinguish ed

. Similarly distinguishable are death

- p enal ty cases upon which Bonds relies for
the idea th at Watson ’ s use of the word “ alw ays ” rende red him objectionable: Colbur n v. State , 966 S. W .2d 511, 518 (Tex. Crim. App. 1998) , and Smith v. State , 9 07 S.W.2d 522, 529 (Tex. Crim. App. 1995)

. In Colburn , the Court of Criminal Appe als upheld
the trial cour t ’ s grant of the State ’ s challen ge of a veniremem b er who expressed that , in consider ing the mitigation special issue, “ There would pr obably be mitigating10

circumstances . Personally, I feel there would always be. ” Colbur n , 966 S.W.2d at 518.
In Smith , the co urt upheld the State ’ s challe nge of a veniremem ber who s tated, “ [T] o

me , there a r e al

ways mitigating circumstances in the nature of life.

. . . I can ’ t imagine
a sit uation in which I would say that there aren ’ t any mitigating circumstan ces . ” Smith , 907 S.W.2d at 529

. Those venireme m b er s, by their own admi ssions, coul d no t perform their duties in accordance with the law, be cause if they “ always ” found mitigating circumstances , they could n ever impose the death penalty. Colburn , 966 S.W

. 2d at 518; Smith , 907 S.W.2d at 529 ; se e also Mor gan v. Illin ois

, 504 U.S. 719,
73 5 , 11 2 S. Ct. 2222, 2 233 ( 1992 ) ( “ [S ]uch jurors

— whether they be unalterably in
fa vor of, or opposed to, the death penalty in every case

— by definition are ones who
cannot per for m their duties in accordance with law, their pr otestations to the contrary
notwit hsta nding

. ” ) . Watso n ’ s statements that his relatives ’ experiences with methamphetamine addiction would “ always ” be in the b ack of his mind are not the

same . He never e xpr ess ed that those personal experi ences would preven t him from considering the evidenc e or the law

— in fact , he affirmed multiple times that he would consider the evidence and the law regardless

— whereas the veni r emember s ’
statements in Smith and Colburn indic ate d that they could not conside r the full range o f punishment. We therefore find S mith and Colburn dis tinguishable from the facts presented in this case. Considering the totality of Watson ’s responses in co ntext , we cannot con clude
that the trial court a bus ed its discretion in denying Bonds ’s chall enge for cause. See11

Jones v. State , No . 02

- 19

- 0 0277

- CR, 20 20 WL 2071 952, at *3 (Tex. App.

— Fort Worth Apr. 30, 2020 , pet. ref

’d) (mem . op., not de signated for pu bl ication ) (de clining to find
that the trial court abused its d isc retion where prospective juro r answered that sh e could honestly consider the full r ange of punishment )

. Accord ingly, w e overrule his
first issue.
B . Extran eous - off

ense E vidence
In his se cond issue, Bonds argues that the trial court committed reversibl e e rror by overruling his object ion to the trial c ourt ’ s consideration of t he A pril 20 19 incident

as an extraneous o ffense b ecause the State did not prove beyond a reasonable doubt that Bonds possessed the me thamphetamine dis covered in the car

. In determining the appropriat e pu nishment, the trial court could cons ider

“ ev idence of a n ext raneous crime or b ad act that is shown beyond a reasonable doubt by evid ence to have been committed by the def endant or for which he could be held criminally res ponsible. ” Te x. Code Crim. Pro c. Ann. art. 37.07 , § 3(a)(1). We will
review the tria l court ’ s determination to ad mit the extraneous

- bad

- acts evidence for an
abuse of its discretion

. See McGee v. St ate , 233 S.W.3d 315, 318 (Tex. Cr im. App. 2007) . Bec aus e the trial court acted as the factfinder here, w e will evaluate the sufficiency of th e evidenc e underl ying its d et ermi nation that the State showed beyond
a reasonable doubt tha t Bonds engaged in the bad a ct. S ee Hughes v. State , No. 02

- 05

- 306

- CR , 2006 WL 3114438, at * 3 (Tex. App.

— Fort Worth Nov. 2, 2006 , no pet.) ( mem. op. , not designat ed for publ ication)

. In doing so, we view the evidence in the12

light most favorable to the determination and de cide whether any ration al trier of fact
could have found the essen tial ele ments of the offense beyond a r easonable doubt.
Id. ; see also Jackson v. Virginia , 443 U.S. 30 7, 319, 99 S. Ct. 2781, 2789 (1979)

. Bonds ’ s argument is that the State had to prove tha t Bonds was guilty of possessing the metha mphetamine discovered in the Ap ril 2019 incident , but th at is a misinterpretatio n of Article 37.07 ’ s all ow ance of extraneous

- o ffense or bad

- act evidence

. The Court of Crim ina l Appeals has explained that the offering party does
not have to “ prove that the act was a criminal act or th at th e defendant committed a
crime

. ” Haley v. State , 173 S.W.3d 510, 515 (T ex. Crim. App. 2005)

. It fur ther explai ned th e important diff erence between guilt

- phase ev idence and punishment

phase evidence:
Unl ike the g uilt

- innocence phase, the question at p uni shment is not whether the defen dant has committed a crime, but instead wh at senten ce should be assesse d. Whereas the guilt

- inn ocence stage requires the jury to find the defendant guilty beyond a reasonabl e doubt of each element of the offense, the p uni shm ent phase requires the jury onl y find that these prior acts are attributa ble to th e defendant b eyond a reasonable doubt.
Id

. ; see also Hanson v. State , 269 S.W.3d 130, 133

– 34 (Tex. App.

— Amarill o 2008 , no pet.) ( “ When an extran eous bad act is admitt ed for consideration during the
pu n ishment phase, th e jury is not required to as sess whet her a sta tutory crim e

occur red; rather, its obligation is to determine, b eyond a reasonable doubt, w hether
th at appella nt was involved in the bad act being offered as evi dence

. ” ). Applying this
standard to the situation in this case, the trial co urt had t o determi ne beyond a13

reasonable doub t that Bonds was in the vehicle in which the methamph etamine and
metha mphetamine bo ng w ere discovered. See Haley , 173 S.W.3d at 51 5

. ( reversing
intermediate court ’ s holding that the evidence was insuffi cient to establis h defenda nt was guil ty of extraneous offense of murder)

. The State pres ented evidence that in April 2019 , police pulled ov er a car Bonds
was drivin g and , in a su bsequ ent s earch of the car, disc ov ered a bong contai ning methamp hetamine shards and two baggi es of met hamphetamin e. T wo officers
identified Bonds as the driver of t he vehicle. View ing the evidence in t he light most
favorable to the trial court ’ s ruling, it wa s m ore than suffi cient to sup port its finding

t hat the State established beyond a r eason able dou b t that Bond s w as in the vehicle in
which the methamphetamine was discovered

. 1 See , e.g. , i d. at 514

– 15. We therefore

overr ule Bonds ’ s second issue.
C. Cleri cal E rror in the J udgment In its brief, the State po ints o ut a clerica l error i n the jud gment ’ s d esignation of
the degree of the convicted offense

. In the “ Degree of Offense ” field of the judgment, the t

yped designation of “ 1ST DEGREE FELONY ” has been cro sse d out
and handwritten next to it is “ 2nd Degree Enhanced to 1st De gree Punis hment, ”

1 The trial co urt found that the evide nce was su fficient to es tabli sh Bonds ’ s possession of the m ethamphetamine, but we are not bound by that finding. Gongora v. State , 214 S.W.3d 58 , 64 (Te x. App.

— Fort Worth 2006, pe t. ref ’ d) ( “ [I]f the trial court ’ s ru ling on the adm ission of evidence is co rrect unde r any theory o f law , even if the trial court gives the wrong reason for its ruling, we must affirm the trial court ’ s decision to ad mit the evidence. ” ).14

accompani ed by the tr ial judge ’ s initials. Bonds was convicted of delivery of four to two hundred grams of m ethamphetamine, a first

- degree felony. Te x. Healt h & Safety Code Ann. § § 481.102(6) ( classif ying meth amphetamine as a p enalty

- group

- one dr ug),
481 .112(d) ( designating possession of four to two hundred grams of a penalty

- group

one drug as a first

- degree felony). His con viction was enhanced by a prio r fel ony conviction. See Tex. Penal Code Ann. § 12.42 (c) (1) ( requiring , up on conviction for a first

- d egree fel ony where th e defendant has a prior felony conviction , an enhanced punishment range of fifteen to ninety

- nine years ).
The State is correct; the judg ment ’ s statement that the conviction w as f or a second

- degree f

elony is wrong. Despite th is, Bond s was pun ished with in the applicable punishment range and we have no i ndication that the error was the result of jud icial reason ing

. See Garza v. Stat e , 298 S.W.3d 837 , 845 (Tex. App.

— Amarillo
2009 , no pet.) (holding similarl y). The er ror was the re fore c lerical in nat ure and we are authorized to modify the judgment to accurate ly reflect his conviction for an
enhanced first

- degree

- felony of fense. See Te x. R . A pp. P. 43.2(b).
IV. C ONCLUSION Having overruled each of Bonds ’ s i ssues on appeal, we af firm the trial court ’ s judgme nt as modified to reflect his conviction for a first

- degree felony enhanced by a prior conviction

.15 /s/ Dana Womack
Dana Womack Justice
Do Not Publish Te x. R. App. P. 47.2(b)
Delivered : April 1, 2021