Green v. State

Full title: JERMARXIAN DEANDRE GREEN, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fourteenth District, Houston

Date published: May 31, 2007

No. 14-06-00155-CR (Tex. App. May. 31, 2007)

Opinion

No. 14-06-00155-CR

Opinion filed May 31, 2007. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).

On Appeal from the 185th District Court Harris County, Texas, Trial Court Cause No. 1033352.

Panel consists of Chief Justice Hedges and Justices Fowler and Edelman.

MEMORANDUM OPINION

WANDA McKEE FOWLER, Justice.

A jury found appellant Jermarxian Deandre Green guilty of manslaughter and assessed punishment at eighteen years' confinement in the Institutional Division of the Texas Department of Criminal Justice. On appeal, appellant contends the trial court erred or abused its discretion by (1) prohibiting cross-examination of a state's witness in violation of his right to confrontation and cross-examination, (2) denying appellant's motion for instructed verdict on the murder charge, (3) denying appellant's requests for jury charges on lesser-included offenses of aggravated assault and deadly conduct, and (4) denying appellant's motion to dismiss or disqualify a juror whose father had died during trial. We affirm.

I. Factual and Procedural Background

Appellant and his older brother, Adrian Dewayne Green, were each charged by indictment with the murder of Quinton Kelegon, the complainant. The two were tried together as co-defendants before the same jury. The jury found appellant guilty of manslaughter and found Adrian guilty of murder.¹ The evidence presented at trial showed that, some time before 2:00 a.m. on March 13, 2005, Kelegon and three friends, Desonyeigh Dwayne Hooper, Lebroderick Williams, and Christopher Pope, decided to go to Carrington's, a night club located in a strip mall on South Main inside Loop 610. They arrived near closing time in Hooper's vehicle, a 1990 Chevrolet Caprice Classic, and parked in the parking lot Carrington's shared with other businesses. The group did not go inside Carrington's, but instead walked around the parking lot socializing and looking at girls. Also parked in the same parking lot was an orange or tangerine colored, customized Ford Expedition owned by Adrian Green, appellant's older brother.² Adrian was a local rapper, and he and appellant were promoting Adrian's music CDs from the Expedition. Eventually, as people began leaving the club, Kelegon and his friends decided to leave the parking lot. Hooper was driving the Caprice and Kelegon sat in the front passenger seat. Williams and Pope were seated in the back, with Pope behind Hooper and Williams behind Kelegon. At this point, the facts developed at trial by the State's witnesses Hooper, Williams, and Pope differ in various details and diverge significantly from those of the defense. The State's witnesses testified generally that after they left the club's parking lot they stopped at a red light at South Main and Westridge. At that time, they were playing music in the Caprice from a CD entitled "Tha Boss," by rapper Slim Thug. Thug's music talked "about rappers" and some of it included "very unflattering," "negative" references to Adrian's rap music. Adrian, driving the Expedition, with appellant as passenger, pulled up on the passenger side of the Caprice. According to the State's witnesses, Adrian could hear the music and became angry, and he and Kelegon, in the front passenger seat of the Caprice, exchanged words. Adrian had an "angry" expression on his face and appeared "riled up, very angry" toward Kelegon and Hooper, the driver. Pope testified that appellant said to Kelegon, "Do you know me"? and Kelegon responded with "No, I don't know you. Do you know me?," which they repeated back and forth several times.³ When Kelegon saw Adrian displaying an unloaded semiautomatic pistol, he told Hooper that Adrian had a gun and said, "[L]et's go. Dude got a pistol, he show it on the steering wheel, let's go." At the next red light, the Expedition pulled up next to the group on the driver's side of the Caprice, and Hooper saw appellant in the passenger seat "bent down low" and "looking like he was loading a pistol." Hooper ran the red light, and he heard a shot fired. Hooper, Williams, and Pope all testified that no firearms were in or fired from the Caprice.⁴ Hooper drove onto the 610 freeway heading north. The Expedition followed, pulled up alongside the passenger side of the Caprice, and several shots were fired at the Caprice. A bullet grazed Kelegon's leg, and he exclaimed, "My leg is burning; it's shot. This dude shot me." Then, as the two cars sped along the freeway, the Expedition pulled up toward the driver's side of the Caprice, and more shots were fired. One of the bullets shattered the driver's side rear door window of the Caprice and hit Kelegon in the side of the head. Hooper exited the 610 Loop at Evergreen, and drove Kelegon to a hospital, where he later died. The hospital contacted the Houston Police Department, and the incident was investigated by Officer A.G. Riddle of the Homicide Division and several others. Riddle examined the Caprice and determined that there were seven fresh gunshot strikes in the vehicle, including four to the passenger side and three to the driver's side of the vehicle. He also determined that all of the shots were fired at angles from the rear of the vehicle toward the front. Riddle found no evidence indicating a firearm had been fired from inside the Caprice. The police attempted to locate, but never found, the Expedition. An autopsy was performed on Kelegon's body by Dr. Morna Gonsoulin, an assistant medical examiner with the Harris County Medical Examiner's Office. Gonsoulin determined that the cause of Kelegon's death was a gunshot wound to the head. The bullet entered behind and slightly above the left ear, and exited on the right side of the temple. The bullet traveled from left to right, slightly back to front, and slightly downward.⁵ She also found a superficial abrasion on Kelegon's right leg. Gonsoulin testified that Kelegon was pronounced dead at 1:30 p.m. on March 13, 2005. Herbert Thompson, Jr., a friend of appellant who was called by the State, testified that he saw appellant some time after the incident and spoke to him about it. Thompson testified that appellant told him that he and Adrian had been to Carrington's that night and that they were in the Expedition when the shooting occurred. Thompson could not remember whether the reason appellant gave for the incident was that he and his brother were being robbed or whether it was that they were being carjacked. Thompson testified that appellant believed he had fired the fatal shot, and appeared remorseful. At trial, appellant testified in his defense, but his brother, Adrian, did not. Appellant's version of events differed significantly from those of the other witnesses to the incident, particularly concerning who were the aggressors. Appellant testified that he was with Adrian on March 13, 2005, to help Adrian promote his CD. Adrian was a local celebrity and owned the Expedition. Adrian drove the Expedition that night. When appellant and Adrian got to the traffic light at South Main and Westridge, the Caprice pulled up to the driver's side of the Expedition and Kelegon twice said to Adrian, "Do you know me?," and Adrian responded, "I don't know you." Kelegon then said, "Well, you know what time it is," but Adrian did not say anything in response. As they were still waiting at the light, Kelegon then got out of the Caprice, and appellant saw that Kelegon had a gun. Appellant interpreted Kelegon's statements and actions to mean that the occupants of the Caprice were attempting to carjack them. Adrian then sped towards the 610 Freeway, but the Caprice caught up to the Expedition. Adrian told appellant to hand him his gun, which Adrian said was in the console of the Expedition. Appellant handed the gun to Adrian, who told appellant to get down. As the Caprice pulled up to the Expedition, Adrian began shooting. Then, as the Caprice came around to the passenger side of the Expedition, appellant told Adrian to give him the gun. Appellant shot twice at the Caprice, not aiming at anyone or intending to kill anyone, but just "to get those guys off of us." He saw one of the bullets shatter the back driver's side window. He believed that this shot killed Kelegon. Appellant admitted that he knew that four people rode in the Caprice because he could see them. He acknowledged that firing a loaded weapon at a car full of people was an act clearly dangerous to human life. Although he acknowledged that seven bullet holes were found in the Caprice, he claimed he had done nothing wrong because Kelegon and the others were trying to rob him and he was trying to protect himself. He agreed that the forensic testimony showed the bullets traveled from the rear of the Caprice toward the front, but he would not agree that he and appellant were behind the Caprice when the shots were fired into it. Instead, he claimed he shot twice when the Caprice pulled alongside the Expedition and was even with it. After the incident, he inspected the Expedition found no bullet holes. The jury found appellant guilty of the lesser included offense of manslaughter and affirmatively answered a special issue concerning the use of a deadly weapon during the commission of the offense. Following the punishment phase, the jury assessed appellant's punishment at eighteen years' confinement in the Institutional Division of the Texas Department of Criminal Justice. The jury also found Adrian guilty of murder and assessed his punishment at fifty years in the Institutional Division of the Texas Department of Criminal Justice and a $10,000 fine. On February 15, 2006, the trial court sentenced appellant and entered judgment in accordance with the jury's verdicts.

II. Analysis of Appellant's Issues

A. Issue 1: Cross-Examination of the State's Witness In his first issue, appellant contends the trial court reversibly erred by prohibiting appellant from cross-examining a State's witness concerning issues raised in direct examination as to appellant's demeanor and character. He claims the court's refusal to allow him to cross-examine violated his constitutional right to confrontation and cross-examination. Specifically, when the State was examining Herbert Thompson, Jr. about his encounter with appellant after Kelegon was killed, appellant points to the following direct examination by the prosecutor, Mr. Cotlar:

Q. [State] Okay. And tell the jury the mood he was in when you first started talking to him.

A. [Thompson] Well, when I first started talking to him, you know, it was like, just a regular, you know, when you meet someone. But then when I asked him about that, I could just see his whole mood just completely changed, you know, like he was very remorseful for whatever the situation that went down, what happened. And, you know, I really felt bad for him because I know how B B I know how he was as a kid and I know, you know, for some reason, you know, it's just not him, you know, even B B he just felt B B

Q. [State] Did he look hurt to you?

A. [Thompson] Yes, sir.

* * *

Q. [State] What, if any, assistance did you offer Jermarxian that day that y'all had that conversation?

A. [Thompson] I was going to pray for him.

Q. [State] Anything else?

A. [Thompson] And that I would be a character witness if he needed one.

Appellant's complaint on appeal concerns the following cross-examination by defense counsel, Mr. Leitner:

Q. [Leitner] The last thing you said was B B is you told him you would be a character witness for him.

A. [Thompson] Yes sir.

Q. [Leitner] What did you mean by that?

A. [Thompson] To B B you know, because I know he was in some type of trouble. It was there. But to let people know that he was, you know, he's a good kid, from what I know. [State] Mr. Cotlar: Judge, I object to this testimony, regrettably. The Court: Sustained.

Q. [Leitner] Okay. You also made the comment, when you were testifying to questions asked by the prosecutor, you said, "I know that ain't him." What does that mean?

A. [Thompson] Because B B

Mr. Cotlar: Judge, I'm going to lodge my same objection.

Mr. Leitner: If I could respond, Judge. They put that in. I have a right to have him explain what he meant by that.

The Court: I'm going to sustain the State's objection. Later, appellant's trial counsel made the following bill of exception:

When it comes to Mr. Thompson, Herbert Thomson, Jr., who testified, had I been able to ask him these questions, I would ask him that when he was questioned on direct examination, he made the statement that, referring to what he heard and Jermarxian Green, "I know that that ain't him," and I wanted him to explain what he meant by, "I know that that ain't him." And I believe that he would have testified that he's not the kind of person that would do that, that from what I know about him, that that was totally out of his character and that I B B that's why I could not believe, because that's just not him.

Likewise, he stated that Jermarxian Green was remorseful and he acted like he didn't want to be involved in this. He acted like he was hurt, like he had lost his best friend. I would ask him to explain what he meant by those statements, and I believe that he would have explained more on the issue of what remorseful meant about how Jermarxian Green seemed like he was truly sorry that this happened, that he had never wanted to be involved in this in the first place, is what he got from him when he said that. And that his remorse and his hurt was similar to what it would be like, he would expect, if the person had lost his best friend. And all of those things are things that B B the statements themselves were brought out on direct examination, and I would have just asked to clarify what he meant by those statements on cross-examination. That would be the total bill on Mr. Thompson, and I would object that not being able to ask him those questions denied my right of confrontation.

On appeal, appellant contends the trial court's rulings sustaining the State's objections were erroneous because the line of questioning he sought to develop was relevant to his "state of mind concerning his conduct on March 13, 2005."⁶ Appellant claims he would have established that he "at wors[t], acted recklessly with regard to his behavior the night of the incident" and would have shown "that it would have been out of character for [him] to have acted out of aggression or with intent to commit the murder of the Complainant and that he would have acted with a mental state demonstrating self-defense."⁷ However, appellant cites no specific case for these propositions and provides no explanatory argument. He merely states in a conclusory fashion that the trial court's limitation on his cross-examination denied him his right to confrontation and cross-examination and cites generally to the Sixth and Fourteenth Amendments to the United States Constitution and to Article I, section 10 of the Texas Constitution. This briefing is inadequate; it provides no legal support whatsoever for his claim that the testimony was admissible for the reasons he advanced. As a result, it leaves us nothing to review. See TEX. R. APP. P. 38.1(h) (requiring an appellant's brief to contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record); Rhoades v. State, 934 S.W.2d 113, 119 (Tex.Crim.App. 1996) ("It is incumbent upon counsel to cite specific legal authority and to provide legal argument based upon that authority."). Moreover, we disagree with appellant's characterization of the testimony that would have been elicited as demonstrating appellant's "state of mind" at the time of the offense. Thompson was not present at the time of the offense and so had no personal knowledge of it. Thompson's answers to the State's questions and defense counsel's bill of exception do not in any way suggest that Thompson could have provided any relevant testimony concerning appellant's state of mind at the time of the offense. Apparently recognizing the disconnect between his argument and the record, appellant urges that "[o]nly some of the relevant evidence that would have been obtained" is reflected in the bill of exception. However, an appellate court must review the ruling admitting or excluding evidence in light of what was before the trial court at the time the ruling was made. Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App. 2002); Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). Thus, even if appellant had not failed to adequately brief the issue, [his argument would fail. We therefore overrule appellant's first issue.

B. Issue 2: Denial of Appellant's Motion for Instructed Verdict

In his second issue, appellant contends the trial court committed reversible error when it denied his motion for instructed verdict on the charge of murder. He claims that the State failed to prove that he had the "requisite culpable mental state (as well as other elements)" to commit murder, and asserts that the jury's verdict of manslaughter supports this argument. A challenge of the trial court's denial of a motion for instructed verdict is, in effect, a challenge to the legal sufficiency of the evidence to support the conviction. See Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App. 1996). The relevant question under this standard is whether, after viewing the evidence, both State and defense, in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Id.; Madden v. State, 799 S.W.2d 683, 686 (Tex.Crim.App. 1990). Here, the evidence showed that Kelegon was hit with a bullet fired from the passenger side of the Expedition and that appellant was the front-seat passenger in the Expedition. Appellant admitted he intentionally fired two shots into a vehicle he knew was occupied by four people. Based on this evidence, a rational jury could have found that appellant intentionally or knowingly caused Kelegon's death or that appellant intended to cause serious bodily injury and committed an act clearly dangerous to human life that caused Kelegon's death. See Adanandus v. State, 866 S.W.2d 210, 215 (Tex.Crim.App. 1993) ("Intent to kill may be inferred from the use of a deadly weapon in a deadly manner); Sutton v. State, 35 S.W.3d 738, 739 (Tex.App.-Houston [1st Dist.] 2000, pet. dism'd as untimely filed) (holding trial court did not err in denying instructed verdict based on lack of intent to kill or cause serious bodily injury when jurors could have found intentional conduct and even though appellant was convicted of manslaughter). Therefore, the trial judge did not err when it denied appellant's motion for instructed verdict.⁸ We overrule appellant's second issue.

C. Issue 3: Denial of Jury Charges on Lesser-Included Offenses

In his third issue, appellant contends the trial court abused its discretion and committed reversible error in denying his requests for jury charges on the lesser-included offenses of aggravated assault and deadly conduct. Appellant's trial counsel requested charges on the lesser-included offenses of manslaughter, aggravated assault, and deadly conduct. The trial court granted the request for submission of the lesser-included offense of manslaughter to the jury, but denied appellant's request for instructions on aggravated assault and deadly conduct. 1. Applicable Law and Standard of Review A defendant is entitled to a lesser included offense instruction if (1) the lesser-included offense must be included within the proof necessary to establish the offense charged, and (2) some evidence must exist in the record that if the defendant is guilty, he is guilty only of the lesser offense. Pickens v. State, 165 S.W.3d 675, 679 (Tex.Crim.App. 2005). The evidence must establish the lesser — included offense as a valid rational alternative to the charged offense. Arevalo v. State, 943 S.W.2d 887, 889 (Tex.Crim.App. 1997). In determining whether the trial court erred in failing to give a charge on the lesser included offense, we review all of the evidence presented at trial. Rousseau v. State, 855 S.W.2d 666, 673 (Tex.Crim.App. 1993). If the evidence raises the issue of a lesser included offense, a jury charge must be given based on that evidence, "`whether produced by the State or the defendant and whether it be strong, weak, unimpeached, or contradicted.'" Id. at 672 (quoting Bell v. State, 693 S.W.2d 434, 442 (Tex.Crim.App. 1985)). When we review a trial court's decision to deny the request, we consider the charged offense, the statutory elements of the lesser offense, and the evidence actually presented at trial. Hayward v. State, 158 S.W.3d 476, 478 (Tex.Crim.App. 2005). 2. Aggravated Assault The first prong of the test requires us to determine whether the offense for which the lesser-included offense instruction is sought is actually a lesser-included offense of the charged offense. Threadgill v. State, 146 S.W.3d 654, 665 (Tex.Crim.App. 2004). Under Code of Criminal Procedure article 37.09, an offense is a lesser included offense if

(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;

(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;

(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or

(4) it consists of an attempt to commit the offense charged or an otherwise included offense.

TEX. CODE CRIM. PROC. art. 37.09. Here, the indictment against appellant charged that he "unlawfully, intentionally and knowingly cause[d] the death of [the complainant] . . . by SHOOTING THE COMPLAINANT WITH A DEADLY WEAPON, NAMELY A FIREARM" and "unlawfully intend[ed] to cause serious bodily injury to [the complainant] . . . and did cause the death of [the complainant] by intentionally and knowingly committing an act clearly dangerous to human life, namely BY SHOOTING THE COMPLAINANT WITH A DEADLY WEAPON, NAMELY A FIREARM." Aggravated assault may be a lesser included offense of murder. See Dowden v. State, 758 S.W.2d 264, 269 (Tex.Crim.App. 1988). The relevant statute provides, in pertinent part, that a person commits aggravated assault if he commits assault as defined in section 22.01 of the Penal Code and he uses or exhibits a deadly weapon during the commission of the assault. See TEX. PEN. CODE ` 22.02(a)(2). A person commits the offense of assault if the person: (1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse; (2) intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse; or (3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. Id. ` 22.01(a). Appellant does not specify which type of assaultive conduct he contends applies; we will presume the relevant provision is an assault by intentionally, knowingly, or recklessly causing bodily injury. See id. ` 22.01(a)(1). Appellant contends the evidence supported a charge on aggravated assault as a party to the conduct of his brother and codefendant, Adrian. Specifically, appellant argued at trial that the jury could have concluded that if he was guilty, he was guilty only as a party to his brother's apparent act of shooting Kelegon in the leg. However, although the jury could have rationally inferred from the evidence that appellant's brother fired the bullet that hit Kelegon in the leg and was therefore guilty of an aggravated assault, that aggravated assault was a separate assault upon Kelegon that was not within the conduct charged in the indictment. Only the bullet wound to Kelegon's head caused his death and it was the conduct that resulted in his death that was the subject of the indictment. Therefore, appellant was not entitled to an instruction on the lesser offense of aggravated assault based on the injury to Kelegon's leg. Cf. Hayward, 158 S.W.3d at 480 (holding trial court correctly refused requested instruction for simple assault as lesser-included offense of murder when the simple assault shown by the evidence was separate from and not included with the conduct charged in the indictment). 3. Deadly Conduct Appellant also contends the trial court erroneously denied his request for an instruction on deadly conduct. Appellant points to his own testimony that he saw Kelegon with a gun and believed that Kelegon and Hooper were attempting to carjack the Expedition, and as the Caprice containing Kelegon, Hooper, and the two others approached the passenger side of the Expedition, he "just shot twice" merely to "get those guys off of us." Appellant also admitted that pointing and firing the gun at a car full of people was clearly dangerous to human life. Appellant contends this testimony establishes the elements of the offense of deadly conduct, because a rational jury could have concluded that appellant did not intend to commit serious bodily injury. A person commits the offense of deadly conduct if he "recklessly engages in conduct that places another in imminent danger of serious bodily injury," or if he "knowingly discharges a firearm at or in the direction of: (1) one or more individuals; or (2) a habitation, building, or vehicle and is reckless as to whether the habitation, building, or vehicle is occupied." TEX. PENAL CODE ` 22.05(a), ` 22.05(b)(1)B(2). An offense under subsection (a) is a Class A misdemeanor, and an offense under subsection (b) is a third-degree felony. Id. ` 22.05(e). For purposes of this issue, we will assume without deciding that deadly conduct is a lesser included offense of murder as charged in the indictment. See Ortiz v. State, 144 S.W.3d 225, 233B34 (Tex.App. — Houston [14th Dist.] 2004, pet. ref'd) (en banc) (holding that deadly conduct was a lesser-included offense of murder under the facts of that case). However, even with this assumption, appellant cannot prevail because he cannot satisfy the second prong of the test. Specifically, the evidence does not support a rational finding that if appellant is guilty, his is only guilty of the lesser included offense of deadly conduct. See Guzman v. State, 188 S.W.3d 185, 188B89 (Tex.Crim.App. 2006) Here, appellant urges us to consider his testimony that he did not aim at anyone in particular, but merely "shot twice" to "to get those guys off of us" because he thought they were being carjacked. Thus, appellant argues, the elements of deadly conduct are satisfied because a rational jury could have concluded that he did not intend to commit serious bodily injury.⁹ However, appellant also testified elsewhere in the record that he was not trying to shoot in the air, he was aiming at the car, he knew there were four people in the car, and he knew that firing a loaded weapon at a car full of people was clearly dangerous to human life.¹⁰ Given these facts, the jury could not rationally convict appellant only of deadly conduct, because, if believed, appellant's own testimony demonstrates that he intentionally or recklessly caused the complainant's death. See id. at 194 (holding appellant convicted of attempted murder not entitled to instruction on deadly conduct when he admitted he had a reckless state of mind and his conduct resulted in serious bodily injury; his testimony established the offense of aggravated assault and thus a jury could not rationally find him guilty only of deadly conduct); see also Forest v. State, 989 S.W.2d 365, 368 (Tex.Crim.App. 1999) (appellant, who testified he meant to shoot victim "in the butt" and did not intend to kill him, was not entitled to aggravated assault instruction when his own testimony showed he intended to cause serious bodily injury to victim and his act caused victim's death and thus he was guilty at least of murder); Jackson v. State, 992 S.W.2d 469, 475 (Tex.Crim.App. 1999) (per curiam) ("A murder defendant is not entitled to an instruction on the lesser included offense of aggravated assault when the evidence showed him, at the least, to be guilty of a homicide."). We overrule appellant's fourth issue.

D. Issue 4: Denial of Appellant's Motion to Dismiss or Disqualify a Juror

In his fourth and final issue, appellant contends the trial court abused its discretion in denying his motion to dismiss or disqualify a juror whose father died during the trial. During the guilt-innocence stage, the trial court learned that the father of a juror, Ms. Schwarz, had died. The trial judge expressed his condolences, and, with the parties' agreement, inquired into whether the juror could continue serving on the jury:

The Court: We all wanted to make sure you were okay to serve.

A Juror: I'm good.

The Court: Not any problem?

A Juror: No. There's no memorial service here. It's all B B we're taking ashes in two weeks up to Canada. There's a memorial service that has to be fixed here. Nothing that has to be done.

The Court: We weren't as worried about that as you being B B mentally being okay.

A Juror: He was ill and it was just an accident. To a certain extent we were prepared for this. We needed to handle stuff over Friday.

The Court: We just wanted to make sure you were in an okay place to continue doing this.

A Juror: Yes, I am.

The Court: Okay. Thanks.

A Juror: You're welcome.

Appellant's counsel objected to the juror's continued service on the grounds that she might be more susceptible to victim impact testimony at the punishment stage than other jurors. The trial court, construing this objection as a motion to disqualify the juror, denied the motion, noting that the juror was not crying and did not appear to be upset. 1. Applicable Law and Standard of Review A trial court may excuse a juror from further service if the juror becomes disabled during trial. See TEX. CODE CRIM. PROC. art. 36.29. A juror is disabled within the meaning of the statute if the juror is physically or mentally impaired in some way which hinders his or her ability to perform the duty of a juror. See Brooks v. State, 990 S.W.2d 278, 286 (Tex.Crim.App. 1999). We review the trial court's determination as to whether a juror is disabled for abuse of discretion. See id. 2. Analysis of Appellant's Issue Appellant contends that the trial court's inquiry, "although well-meaning," was improper and insufficient to establish whether the juror could fully and fairly perform her functions as a juror. See Reyes v. State, 30 S.W.3d 409, 411 (Tex.Crim.App. 2000) (recognizing that a disability is not limited to physical disease, but also includes any condition that inhibits a juror from fully and fairly performing the functions of a juror). According to appellant, the trial court's inquiry minimized the juror's ability "to expound on how and to what extent the death of her father would affect her ability to perform her duties as a juror," and did not take into account the impact the death of a parent could have on a juror, particularly in a murder trial in which the defendant is accused of taking another person's life. As additional support for his argument, appellant further contends that the trial court should have dismissed the complained-of juror because the trial could have continued with eleven jurors, with or without the parties' consent. See Hill v. State, 90 S.W.3d 308, 315 (Tex.Crim.App. 2002) (noting that Article 36.29 permits a trial to proceed with eleven jurors without the consent of the parties when one juror becomes disabled). We disagree with appellant that the trial court's inquiry into the juror's ability to continue to sit as a juror was insufficient. Moreover, the juror's responses to the trial court's questions indicated that she was not mentally impaired by the death of her father in a way that would hinder her ability to perform her duties as a juror. The trial court's inquiry elicited the juror's explanation of the details surrounding her father's death, and the juror expressly affirmed that she was able to continue sitting as a juror. We also think it significant to our resolution of this issue that the court was able to watch the juror closely as it questioned the juror regarding her father's death and the family's plans to commemorate his death. Under these circumstances, we hold the trial court did not abuse its discretion in denying appellant's motion to disqualify the juror. We overrule appellant's fourth issue.

Conclusion

We overrule appellant's issues and affirm the trial court's judgment.

1 Adrian Dewayne Green was indicted in Cause No. 1021417, in the 185th District Court of Harris County. Upon finding Adrian guilty of murder, the jury assessed his punishment at fifty years' confinement in the Texas Department of Criminal Justice, Institutional Division and a $10,000 fine. This Court considered his appeal in Cause No. 14-06-00154-CR.

2 The Expedition was described as having Lamborghini-style doors that opened upward and spinning rims, among other things.

3 Hooper testified that appellant said to Kelegon, "Do y'all got a problem with me?," to which Kelegon responded, "Man, I don't even know you" and "Who are you"

4 When the police examined the Caprice, they found a box containing several .25 caliber bullets in the glove compartment. Also found was a gun case, and inside the case was a clip containing 9 millimeter bullets, which Hooper testified was locked and in the trunk of his car along with other possessions because he had recently moved. In addition, the police found a lock box containing a box of ammunition for a .22 caliber rifle.

5 Darrell Stein, a firearms examiner, compared the bullet obtained from Kelegon's head to the six bullet fragments recovered from the Caprice by Officer Riddle. Although he could not determine with certainty that they were all fired from the same gun, all had sufficient characteristics to enable him to testify that they could have been fired from the same type of firearm, which would have included the 9 millimeter semiautomatic pistol.

6 Appellant contends this `state of mind' evidence was admissible under Texas Rule of Evidence 611(b) because Rule 611(b) allows cross-examination on "any matter relevant to any issue in the case, including credibility." See TEX. R. EVID. 611(b).

7 Initially, appellant also complains that the trial court's rulings were erroneous because the State, "merely by stating "objection" gave nothing for the Trial Court to sustain." Appellant cites no authority for his proposition, and we are unpersuaded. A trial court's ruling on the admissibility of evidence is reviewed for abuse of discretion and will be upheld if it is reasonably supported by the record and correct under any theory of law applicable to the case, based on what was before the trial court at the time the ruling was made. See Brito Carrasco v. State, 154 S.W.3d 127, 129 (Tex.Crim.App. 2005); see also Martinez v. State, 74 S.W.3d 19, 21 (Tex.Crim.App. 2002) (holding appellate court may properly affirm denial of hearing on motion for new trial based on finding of insufficient affidavit even though that specific claim was not raised by the State).

8 Appellant also asserts in his brief that, as a result of the trial court's denial of his motion, he was "forced" to put on evidence of his innocence and so "felt compelled" to testify on his own behalf. Appellant also argues the denial of his instructed verdict improperly shifted the burden of proof from the State to appellant to prove his innocence. However, appellant does not direct us to, and we do not find, anything in the record to support his assertions that he was forced or otherwise compelled to testify. Nor does he cite any authority to support his argument. Therefore, the argument is insufficiently briefed and presents nothing for review. See TEX. R. APP. P. 38.1(h); Rhoades, 934 S.W.2d at 119.

9 Appellant does not specify whether his conduct satisfies Penal Code sections 22.05(a), 22.05(b)(1), or 22.05(b)(2).

10 Accordingly, the facts of this case distinguish it from Ortiz. Ortiz, the defendant, was one of two people in a car who allegedly fired a gunshot that killed the complainant. Ortiz was charged with murder but was convicted on the lesser included offense of deadly conduct. On appeal, Ortiz argued that the trial court erred in submitting the deadly conduct charge. Ortiz, 144 S.W.3d at 229. This Court held that appellant failed to present a record reflecting which party requested the instruction and thus the record did not affirmatively demonstrate error requiring reversal, and, additionally, appellant failed to demonstrate the existence of egregious harm. Id. at 230. In dicta, this Court noted that even if it considered appellant's contention on the merits, it would fail because, in that case, deadly conduct was a lesser included offense of murder and so satisfied the first prong of the test. Id. at 233B34. This Court went on to state that the second prong of the test was also satisfied because the evidence that appellant told the police he fired his pistol "two times in the air" was some evidence that appellant was guilty only of deadly conduct. Id. at 234. Here, in contrast, appellant affirmatively denied shooting into the air, and admitted intentionally firing into a car containing four people.