Hernandez v. State

(Tex. Spector, Arias v. 623 S.W.2d Baker, (Tex. HERNANDEZ, Appellant, 1981); Brod v. Pedro Ramon Fuller, 1979); Cassidy v. (Tex.1978). Texas, Appellee. The STATE has Once a court transferred No. 68008. jurisdiction of the child. Sec case looses it Texas, Appeals of Criminal Court 11.06(k) provides: tion En Banc. court to which a transfer is made (k) A continuing jurisdic- becomes the court of 20, 1982. Jan. tion, all the suit are proceedings and 18, 1983. Denied Jan. Rehearing there brought continued as if it were decrees, All originally. judgments, the same

orders transferred shall have originally

effect and be enforced as if

entered in the transferee court. judgments, shall enforce

transferee court

decrees, transferring orders of the by contempt

court other means transferring which the court transferee

have enforced them. The power have the specifically

court shall transferring

punish disobedience of the decrees, orders, judgments,

court’s occurring

whether before or after transfer,

transfer, by contempt. After transferring jur- does not retain court subject of

isdiction of the child who is the transfer, added). (emphasis

Although a transfer order is an interlocuto- order, transferring

ry is final as to

judge judge plenary power once the loses 329b(d).

over the order. See Tex.R.Civ.Pro.

Notwithstanding propriety August

the transfer order entered exercise

Judge authority Valderas had no affecting parent-

control the suit over 15, 1982. relationship

child on November condi- hearing argument

Without oral

tionally grant the writs of mandamus judge. Tex.

prohibition against the district will issue

R.Civ.Pro. 483. writs with this

Judge comply Valderas fails to

opinion.

399 members, permitting m vemre

tach absent in allow- testify, incompetent witness incompetent question ing the State questions, asking leading witness punish- third refusing to submit the and in to the 37.071, of Art. V.A.C.C.P. ment issue six Also, appellant complains the jury. selec- allegedly improper instances tion. mur- for the was convicted appellant

The evidence Martin The Frayre. of Oscar der morning hours early in the establishes a entered the appellant of June in and robbed station El Paso gas closed at the mechanic Frayre, shot a fatally and staying Frayre, had been gas station. who for him quarters provided overnight in the station, shot the gas back of in- the Sanchez, friend Lucila a three times. gas present outside appellant, the of- during station commission appellant testified fense and she is evidence sufficiency The of the at trial. challenged. not complains appellant The first continuance. overruling of his motion for counsel urged appointed The motion to investi given enough time had not been granting for The gate prepare trial. vested for is denial of a motion continuance court, trial sound discretion of the judgment justified a is reversal of has abused it is shown the trial court when Arditti, Lovelace, El Victor R. M. Richard State, Corley v. 582 S.W.2d its discretion. Paso, appellant. for (Tex.Cr.App.1979); 815 Ashabranner Simmons, and R. Atty., Steve W. Dist. State, (Tex.Cr.App.1977); 557 S.W.2d Stiles, Paso, Bradford Asst. El Atty, Dist. Nelson v. Huttash, and Alfred Atty. Robert State’s App.1974); Bryant 423 S.W.2d Walker, Austin, Asst. for the Atty, State’s (Tex.Cr.App.1968). State. case present record in the The first had been that other counsel shows on represent but appointed appellant, 15, 1980, who attorneys August the two OPINION represent tried the case who now Judge. DALLY The appeal appointed. were appellant appeal This is an for from a conviction 8,1980. September set for trial on case was punishment death. capital murder. is time relatively this is a short Although is where the State case preparation contends that seri penalty, specific, no seeking court erred: motion overruling his continuance, by the to at- ous matter has been raised overruling his motion and the record does not otherwise rephrased show that before she understood them. the appellant’s prejudiced Nevertheless, defense was by ques- she answered all the counsel having tions, understandable, more time prepare were answers trial. We no abuse discretion in her answers reflect an ob- ability find Furthermore, court’s serve question. action. since events in intelligently appellant himself did not want a continu- The issue of witness’ competency ance he sign did not the motion for continu- court, question ruling for the trial and its ance as required 29.08, V.A.C.C.P., Art. will appeal not be disturbed on unless and for this nothing reason is presented for abuse of is shown discretion a review review. Kemner v. record, including entire the witness’ tri (Tex.Cr.App.1979); Zanders v. al testimony. Watson v. S.W.2d 907 (Tex.Cr.App.1974); Ikner v. Villarreal v. (Tex.Cr.App.1980); State, 468 S.W.2d 809 (Tex.Cr.App.1971). (Tex.Cr.App.1978); 576 v. S.W.2d 51 Clark State, 558 887 (Tex.Cr.App.1977); S.W.2d Complaint is next made that the ap State, Provost v. pellant’s motion to attach absent veniremen State, App.1974); v. 442 687 Melton S.W.2d was erroneously overruled. In Brown v. We conclude from re (Tex.Cr.App.1969). State, 475 (Tex.Cr.App.1971), S.W.2d 938 it view testimony of Lucila trial Sanchez’s was said: the, that court not abuse its in did discretion “Appellant upon 35.01, relies Article testify. permitting her to Y.A.C.C.P., to his claim that support the is also made of the trial Complaint court refusing erred in his motion for permitting court’s action in the to ask State attachments to pro- issue absent Lucila leading questions Sanchez certain spective jurors had who been summoned objections. over the appellant’s This was and not properly excused from jury duty. matter within sound discretion the the The directory, statute is not mandatory, trial a defendant can court. Unless show and any failure of the court to observe a prejudiced by that he was virtue of unduly compliance literal will not constitute re- questions, such no reversal of his conviction versible error in the absence of a showing State, will result. v. 496 61 Navajar S.W.2d of injury.” Ortega State, (Tex.Cr.App.1973); v. 493 appellant in the instant case has failed v. (Tex.Cr.App.1973); S.W.2d 828 Uhl to show any resulting injury from the trial 55 479 (Tex.Cr.App.1972); S.W.2d court’s overruling action in the motion. Linton v. Tex.Cr.R. ground This of error is therefore overruled. excep As one S.W.2d 320 Stephenson See S.W.2d 900 excluding leading ques tions to the rule (Tex.Cr.App.1973); Dent v. 504 tions, that leading questions it has been said (Tex.Cr.App.1974); S.W.2d 455 Moreno v. when the may permitted witness has State, 587 405 (Tex.Cr.App.1979). understanding English the lan difficulty in In error, his next two grounds the Evidence, guage. Texas Sec. 578 Ray, See appellant the asserts that trial court erred (3d 1980). at 534 ed. Sanchez, in permitting Lucila who he says in the instant case dis The record witness, was an incompetent testify and had in difficulty closes that Lucila Sanchez in permitting the to ask leading State questions understanding certain and ar questions objection. over responses English in the ticulating certain instances, discloses language. The record that Lucila In the court’s some instances, interpreter Sanchez was 24 old and a other years high school was used. graduate 1975; allowed. We find special leading questions she attended edu were actions, especially cation classes high apparent school. It is no error in the court’s from testimony, the record it was difficult for her the same elic substantially that since leading questions, to articulate in was obtain English responses through certain ited questions many response ques- questions had to ed from Lucila Sanchez Frayre appellant the heard appellant’s tions the counsel on cross-ex Sanchez by amination; in a tone of voice preju the was not words appellant exchanging the leading questions. they arguing, virtue of the were by diced sounded as Davis v. the Ortego supra; discern were words she could (1925); re- dinero," Frayre 100 Tex.Cr.R. S.W. el saying, “Paso Lehr, Brown, Dave Inc. v. tengo yo.” dinero When “No sponding, (Tex.Civ.App. Waco, 1933). translation, English asked for — “paso el dine- stated interpreter court’s next asserts that over money or hand “pass meant ro” refusing to sub- request court erred in his yo” dinero meant tengo and “no money” jury. punishment mit the third issue to money.” not have “I do 37.071,V.A.C.C.P., provides Art. that at the stage of a murder trial punishment issue of to raise the In order upon presentation conclusion there be necessary provocation, evidence, submit “the court shall just pri- conduct the deceased’s evidence of following issues to the jury: death; also, must be that evidence or to his “(1) provocation. considered sufficient to be “(2) .... Lucila voices heard Sanchez The loud “(3) evidence, if raised whether with the sounds of tools together this case in killing conduct of the defendant concrete are not evidence falling on the deceased was unreasonable in re- conduct; they do not show that Frayre’s sponse provocation, to the the any, by appellant the to may provoked have Frayre [Emphasis deceased.” added.] con we are unable to kill him. Therefore urging punishment that the third issue review of the record that clude from our evidence, the by appellant was raised the provocation; evidence raises the issue of the says, his brief “The evidence which we invitation appellant’s we also decline the make reference in testi- the instant case is up putting decedent was infer “that the mony appears that in several in the places resistance to whatever some kind of of Facts to the Statement effect Ev compare being done to him.” See sounds a fierce from struggle were heard State, (Tex.Cr.App. 943 v. ans filling inside the station a moment before Moreover, punishment stage at the 1980). the shots were heard. Voices raised in ar- present not appellant the did heard, gument according were also to the the attempt to raise evidence in any testimony of Lucila Tercero It is Sanchez. appellant, The provocation. issue reasonable to draw the inference from this counsel, his own testi against the advice of that the decedent was kind putting up some that the fied, only request but he did so being resistance whatever was done to to death. jury sentence him him, injured, and this before he fatally six in- complains next appellant injured or at all.” improper jury selection. allegedly stances of brief, According to the appellant’s appellant these instances the In the first of struggle “sounds of a fierce were heard by excusing court erred urges that the trial from the filling inside station moment appellant’s ob- venireman Chavez over the appel- before shots were heard.” The stated year This 59 old venireman jection. lant, however, does not cite us to evi- mind, pneumonia, he a sick had conten- support dence the record to his trouble, that he was on medi- heart tion. Our review of the record discloses expressed further doubt cation. Chavez voices, that other loud than on the ability to serve physical about his coming gas “sounds” heard from inside the on its The trial court excused Chavez jury. n con- falling station were sounds of tools on motion. own crete. This is not evidence of a fierce its court should not on A trial although sup- And struggle. the evidence on a venire member motion excuse ports appellant’s contention that Lucila own grounds which do not absolute show an within murder The trial statute. court disqualification. V.A.C.C.P.; 35.19, See Art. then intervened to ask: State, Esquivel v. Now, Gomez, “THE COURT: Mr. App.1980); State, v. Bodde S.W.2d again criticizing I am not you. You State, (Tex.Cr.App.1978); Valore v. things. us two told different You told S.W.2d 477 (Tex.Cr.App.1977). Chavez District couldn’t con- Attorney you would subject been to a of a where you ceive murder case felt V.A.C.C.P., cause 35.16(a)(4), under Art. on years punishment like five was in or- the ground he bodily had “such der; you do recall that? saying mental defect or disease as to render him Yes, “A. Ido. ” unfit jury service.... Now, “THE COURT: told the has not shown how he was by harmed attorney you defense could conceive of exclusion of nor Chavez has he established years one where felt would five by he was tried he had which order; please? which is it legitimate objection. v. Esquivel say something. “A. If I can He said to supra; Bodde v. supra; Valore v. think of a certain What case. if it’s supra; Henriksen v. self-defense? S.W.2d 491 (Tex.Cr.App.1973). Further self-defense, “THE COURT: If it’s more, that the trial court excused Chavez guilty. wouldn’t find man on its own motion when he chal was not They fighting “A. could have been lenged for cause an issue State is not something. in this case since did “THE I will Again, COURT: ask object on ground. this See Bodde has, and we everybody else are enti- supra; (Tex. Moore tled know whether could con- Cr.App.1976). We conclude that punishment range sider full court did not abuse its discretion exclud offense of murder which starts at a ing compare Chavez. See and Redd v. years goes up low five to a State, 578 S.W.2d 129 (Tex.Cr.App.1979); possible years or ninety-nine life. Villarreal v. range That’s the Is punishment. App.1978); Bodde v. supra. understood, Mr. Gomez? Next, appellant the complains Yes, “A. sir. venireman erroneously Jose A. Gomez was Well, “THE could you COURT: con- excluded for cause over the appellant’s ob case, you again, ceive of a ask I’ll jection. This venireman showed that he your permit where conscience would would not range pun consider entire punish- to consider five years law; therefore, provided by ishment he was ment murder? subject challenge to for cause under Art. “A. No. 35.16(b)(3), V.A.C.C.P., on ground right. You “THE COURT: All are he had prejudice against phase “a bias or [a] You will be excused. disqualified. upon the law which the entitled State is excused, are You sir. to rely punishment.” conviction or For the “[DEFENSE ATTORNEY]: During pros- voir dire examination by the record, may to ecutor, his expressed venireman Gomez bias that, Your Honor. against for the punishment the minimum “THE COURT: Sure.” lesser included and un- offense murder court’s to We no error in the trial exclu- equivocally stated that he was unable find Gomez; certainly consider case. sion of his answers reflect punishment such in a murder punishment. challenged against cause. the minimum State Gomez for bias 313 Thereafter, appellant’s sought v. 568 S.W.2d counsel See Chambers 542 demonstrating (Tex.Cr.App.1978); Moore by rehabilitate Gomez 664 Further- range may (Tex.Cr.App.1976). wide of fact fall situations that

403 be, feel might because more, he ble the facts not shown that has do, vote in could never way you was tried to which he had Henriksen v. would legitimate objection. person that another way such a State, supra. what penalty; is that receive the death telling me? you are error, grounds appel

In four true. “A. That’s lant also the trial court complains Michael by excluding erred venire members up loudly. Speak “THE COURT: Gonzales, Virginia Charlotte Smith Knapp, Yes, Honor. “A. Your of inabili grounds and Frances “on is, you So, what the crime “Q. no matter sen ty imposition to consider of the death for the death could never vote case after the deci tence.” This was tried way feel? that’s because in Adams v. Supreme sion of the Court “A. That’s true. Texas, 100 S.Ct. U.S. evidence, you “Q. No matter what the (1980); our review consists L.Ed.2d the death because have to vote determining any whether of the venire feel inside? way you of the with exclusions were inconsistent member’s true. “A. That’s Illinois, 510, 88 Witherspoon v. 391 U.S. change say I can “Q. nothing There is L.Ed.2d mind, is that correct? your complains first of the correct. “A. That’s venireman excusing court’s action in Defense “Q. nothing And there is Knapp. prosecutor Knapp asked When mind? lawyers say change your can he think of case in which whether “A. That’s correct. he human sentencing could consider another death, being neg answered in the Knapp “Q. nothing Judge that the And there is change ative and added that would nothing mind, is that say change your can prosecutor challenged his mind. The then correct? Thereafter, Knapp under Witherspoon. “A. That’s correct. reha appellant attempted counsel for the you, Thank “[PROSECUTOR]: Knapp Knapp equivocat bilitate but never under Wither- ma’am. ed opposition imposition in his to the spoon, Your Honor.” he answer that penalty; continued to appel- In subsequent questioning he human would never sentence another counsel, equivo- seemed to Gonzales lant’s being Knapp’s to death. We find that ex cate, court to ask: leading the trial Witherspoon. clusion was consistent with me ask “THE Let COURT: Compare Russell v. Are get we can it definite. again so (Tex.Cr.App.1980); Brandon con- your in which there some cases O’Bryan v. (Tex.Cr.App.1980); S.W.2d 567 to vote permit you science would (Tex.Cr.App.1979); penalty? the death Granviel v. I “A. don’t know. App.1976). “THE Ma’am. COURT: next directs our attention I am I know. I am confused. “A. don’t Gon- the examination of venire members very confused.

zales, out Bradley. We will set Smith these exam- pertinent portion of each of Well, I think “THE don’t COURT: inations. confus- asking you very is what I am now, some situa- ing, is it? Are there During pros- voir dire examination to consci- you would enable tions that ecutor, Virginia asked: Gonzales was penalty; vote for the death entiously pen- “Q. your opposition Is to the death asking? am what I you do understand that no alty strong you so inside of Yes, Your Honor. “A. kind matter what the facts were do answer? you How horri- “THE COURT: case, how criminal no matter “A. No. juror “THE COURT: This will be excused under the doctrine Wither- “Q. any? You can’t conceive of You You have spoon. your can’t think anything per- that would exception. you, Thank ma’am. You you mit conscientiously to vote be excused.” will penalty? death No, “A. sir.” Venire member Charlotte Smith was at stating position first on equivocal Continued questioning by the court did not capital punishment. She know seemed to confuse Gonzales the court penal- whether she could consider the death thereafter asked the series of following ty appropriate prose- under the facts. questions: explained procedure cutor then followed you “THE COURT: I’m ask going 37.071, V.A.C.C.P., and under Art. towards again. Try to understand me because the end of the voir dire examination asked really it is not too difficult. You know Smith: what death penalty is? “Q. you telling Are me no then matter Yes, “A. Your Honor. what instructions were from the Now, “THE COURT: we are here Court, your feelings you have a inside — are today, trying jurors, to get right disagree the law. Be- with you that’s doing what are to sit on here here, right cause we live we have the They this case. have to be fair and disagree you telling with the law. Are impartial both to the and to the State your feelings say me inside would Now, Defendant. it possible that in no matter what the facts are I you hear case, this could be penalty case or in in this a case So, you, assessed. we are asking Mr. murder, I would either have to answer Weiser, Lovelace, Mr. myself, how questions of those or refuse to one no you feel about penalty? death I question answer the because don’t That’s we are asking. Okay. what person executed? If want Now, you so following are me far? feel, that’s fine. If way you that’s Yes, “A. uh-huh. don’t feel then tell you me. way, Now, “THE COURT: you told Mr. don’t know. I know how to “A. don’t Weiser before and I’m ask going to you. answer again, you opposed are to the death Well, Smith, “THE COURT: Mrs. let punishment crime? us me ask this: You have told Well, at “A. time I didn’t under- deep feeling against stand. I didn’t understand. penalty?

“THE COURT: I don’t care what right. “A. That’s you understood at the You an- time. COURT: that what “THE Isn’t now, please. swer me said?

“A. wrong, yes. If he did something “A. Yes.

“THE COURT: If what? right. “THE COURT: All Let me “A. What meant was if he some- sit simple. did make Could ever thing wrong, course, way he has to be and vote in such a that a punished for what he did. man would be executed? guess

“THE COURT: I would all “A. I don’t think so. we agree get with that. I’ll to the back “THE right. COURT: All question again. youDo think that Vir- “Q. so, think you say you When I don’t ginia Gonzalez, that’s it? you, isn’t that, you mean could not do is that “A. Yes. correct?

“THE COURT: vote you Could ever right. “A. That’s to send a man to his death? I on Wither- pass “[PROSECUTOR]: No, “A. I don’t point.” think that spoon so. Further excused, examination of ap- Smith “THE COURT: You will be pellant’s counsel reveals following: you very ma’am. Thank much.”

“Q. Smith, Mrs. you can think of no Smith, Like venire member Frances crime that is so damaging society or at first in her an- Bradley equivocal to the against individual whom is concerning capital punishment, swers lead- done that person who did it should ing the trial court to ask: die for it? “THE Are there some cir- COURT: No, “A. I don’t think I do. or you cumstances can conceive of some “Q. No crime. your cases in which conscience would “A. No. permit you penal- to vote for the death ty? “Q. Not even to someone’s children or

someone who very helpless No, is and dear “A. I don’t think so. I will be hon- else, to someone babies? you. est with I don’t think I could. Well, “A. depends somebody is being “THE We COURT: are sick and do something that, like you critical any you may attitude know what I saying? am but do have to know this.

“Q. Mentally ill? only way “A. The I could see a death penalty was if it was a child or minor “A. Mentally ill, sick, mentally then it that couldn’t or it protect themselves right isn’t but then there is an excuse. it, they intended you to do “Q. But suppose someone were not men- caused — know what I mean? ill tally or at least not in the sense the “THE you COURT: In our law subject, just deals with that is hardly person guilty couldn’t find a dollar, sane just just really nasty, you they murder unless found that in- really person, bad but not mentally ill tentionally committed the act. That’s and does some really thing? horrible part very definition of murder. Well, “A. if there is no help anybody Well, now, at the risk repeating my- anymore, guess I the law has to do boring you, self and do think of something about it. any any grave enough case or situation “THE interrupt COURT: Let me mind which would your permit you, you here. You told us several times Bradley, Mrs. to vote for the death you are against so penalty penalty? you could not vote for it? No, “A. I don’t think so. Yes, “A. right. that’s Now, “THE are firm in COURT: Now, “THE COURT: which is it? Is answer, ma’am? that what your feeling is? guess, yes.” “A. I “A. That’s my feeling what is. If some- body proved appel- somebody subsequent questioning by me that counsel, again would do it again, really over then I am lant’s seemed to not sure of asked: myself. The trial court then equivocate. “THE COURT: I don’t understand about “THE You told us COURT: what talking are about now. Are now, things, which three different so very helpful. understandable but not you could not vote to send a man to think, just “A. don’t to tell death under any circumstances? How truth, mur- very good I would be on a do you feel about that. der trial. any “A. Under circumstances? trying “THE COURT: We are “THE COURT: That’s what I asked thing. We want find out one little you before. sit on Frances know if together just jury “A. and work my place put don’t feel it is case she jurors anybody to with eleven other death. might conceive and pen- write a death demeanor of the- venire they members as alty spell that would finish to some old answer questions, better situated to de Now, boy. can you do it or can’t you? particular termine whether a venire mem No, “A. I don’t think I can. I don’t ber is in unequivocally fact committed to think I good would be jury. against vote imposition penal death ty.

“THE COURT: In the It’s not whether absence of abuse of discre you would good tion, or not. we should not disturb the trial court’s least, ruling, especially very if at the serious “A. I don’t think I can make the deci- sion. doubt ability is cast on the of a venire juror. member to be a fair and impartial

“THE COURT: Whether can or State, State, v. supra; Villarreal Granviel v. could not? State, supra; supra. Tezeno v. “A. I don’t think I can.” A continued examination what was said in appel- Reiterating White v. lant’s State, counsel further reveals following: supra, about the area of troublesome venireman,” “equivocating

“Q. adhere to suggesting am not easy is an from following decision. I am not statement Tezeno v. suggesting that the proponents State, and opponents supra: of the death penalty good argument. don’t have a “We cannot believe that Witherspoon do, think, They but as far as the Illinois, supra, requires v. certain formal are, way you you say in the case of a answers surely and none other. We feel grave crime that offends you very Witherspoon that the test is ‘not to be much such killing, as child intentional applied hypertechnical and ar- with child killing any other intentional chaic of a 19th approach century pleading planned, done type killing, are tell- book, but with realism and rationality.’ ing us are not sure can or large “We are aware of a number of cannot? cases which have recently Well, “A. I would say that I don’t be- opinions been reversed in memorandum lieve I could make the decision for a Supreme the United Court3 States person’s death. citing cases While [Footnote omitted]. “Q. Which means not sure? difficult, if impossible synthe- it is right. “A. That’s opinions, from those we have size rule “THE COURT: Which means to me the voir dire in the instant concluded that going you. I’m to excuse you, Thank answers of the veniremen are case and Bradley. Mrs. You will be excused.” than those which were unequivocal more This Court has previously recog the cases which have been set forth in

nized the troublesome area of the “equivo reversed.” venireman,” cating and we have held that consideration of the record After a careful Witherspoon, supra, require specif does not us, before we conclude that the trial court’s State, ic formalized answers. Brandon v. Gonzales, to exclude Smith and decision State, supra; supra; Villarreal v. White v. was consistent with from State, 543 104 (Tex.Cr.App.1976); answers reflect Witherspoon; their Tezeno v. serve have been unable to each would App.1972). Hughes also v. See jurors consistent with impartial fair and (Tex.Cr.App.1978); S.W.2d 581 Granviel v. Witherspoon. compare Villarreal State, supra. With a “cold” record supra; Granviel v. supra; us, many before it is difficult say Moore v. su- supra; White v. whether certain venire members instances State, supra. pra; Tezeno vote unequivocally are committed deference to give due recognize We imposition penalty. of the death discretion; properly to not judge’s Certainly judge, present who is discretion would respect the trial court’s hear the tone of voice and observe its entitlement to asserted basis for constitute a and under- State’s recognize failure to jurors. Knapp, stand the realities for cause of Gonzales of the voir dire of the exclusion judge’s interpretation jury Smith,1 The trial of the “un- disqualification was their and com- voir dire the instances of which it is Witherspoon,”2 appropriate der plaint has been not show an fact, made does have been made in each to we construe abuse of discretion. prospective the the believed because State prejudice against juror had “a bias [a] in oral Additionally, the upon law which the State of the phase argument urged of these venire that each for ... rely punishment,”3 entitled [was] erroneously members was excused because preadventure that beyond since “it is clear challenge the State did not them for cause. challenging ground is not a Witherspoon record, however, The reflects that ve- Texas, juror.” Adams v. any prospective nire member Bradley was excused on the 38, 47, 2521, 2527, 65 S.Ct. U.S. motion; Court’s own the other three venire (Hereinafter (1980). cited as L.Ed.2d 581 challenged members were for cause. That Adams.) the Court excused Bradley on its own mo tion does not present an issue in this case Indeed, established its I believe State since ground no on this was made entitlement to the exclusion for cause in the trial Bradley court when was ex Knapp, for his answers revealed venireman cused. Moore v. supra; Hughes v. impar he would be unable be fair State, 562 S.W.2d 857 (Tex.Cr.App.1978). juror deliberating tial the issues to be

All grounds four of error are overruled. Adams; punishment. Vig at submitted judgment is affirmed. neault v. Further, willing agree I am App.1980).

CLINTON, Judge, dissenting. that venirewoman majority with the Smith “equivocating was a classic veniremem-b The focus my concern in this is on case er,”4 because the thrust of her voir methodology of the majority dispos- dire examination as a whole reveals her to ing appellant’s grounds of error four through irrevocably against imposi seven. committed Therein the com- be plains penalty, tion of the death I concur in over exclusion of venire-members Gonzales, Michael of error Knapp, Virginia ruling ground complaining Frances Smith; Charlotte her exclusion.5 though State; challenged by 1. was not in- She “didn’t think” she could think of a crime so deed, passing prosecuting attorney society damaging her the or the victim that the actor expressly got declined to make one. die for Smith should it. closest saying penalty might appropriate the death Witherspoon Illinois, 510, 2. 391 U.S. 88 S.Ct. cases, “well, help is in some there no 1770, (Hereinafter 20 L.Ed.2d 776 cited guess anybody anymore, the law do has to Witherspoon.) as it;” too, something about course, this is ambiguous. (All painfully emphasis supplied 35.16(b)(3), 3. See Article V.A.C.C.P. The ac- throughout by opinion the writer of this unless provided cused is a similar for cause indicated.) otherwise (c)(2). applied id When to a case in which the does determine whether however, regard, 5.My in this has conclusion death, penalty imprisonment shall be accord- been reached without reservation. The rec- ing Witherspoon, “The that can be most prosecutor posited that after the ord reflects regard demanded a venireman in this is that cause, challenged questions and Smith for his willing penalties to consider all of the he be elicited Smith’s doubts that she defense counsel law, provided by state irrev- and that he not be justify damaging as to think of a crime so ocably committed, begun, before the trial has gave hypothet penalty; he then her a regardless to vote of death baby. being regarding a child or the victim might of the facts and circumstances thought perpe- reply she indicated Smith’s Id., emerge proceedings.” in the course of the be mental- a crime would have to trator of such at at n. 21 391 U.S. n. contingen- negated ly this ill. Defense counsel Court). (Emphasis by Supreme gave response cy hypothet Smith in his something guessing to do prosecutor’s questions, “the law has about 4. To seven of ten 3, ante.) (See “honestly n. felt. about it.” know” how she Smith didn’t However, my review of the record reveals while expressing a doubt to her personal no insidious feature of venirewoman Brad- ability death,” “to vote for the imposition of ley’s voir dire examination which would re- a fairly juxtaposition common of attitudes quire the Court’s deference a trial which I would not characterize as “conflict- judge’s exclusion of an apparently qualified ing” “equivocal.” juror without challenge by party, either The majority opinion sets out the trial over an acknowledged objection by de- court’s continued interrogation wherein fense. I cannot agree that a judge’s Bradley reiterated doubts about her discretion extends this far. ability “to vote for the penalty,” death Contrary to the majority opinion’s asser- while standing firm on her belief that it tion that Bradley “was at first equivocal in would be appropriate “if it was a child or her answers concerning capital punish- minor that couldn’t protect themselves or it ment,” ” the record reveals that Bradley ap- they it, intended to do .... caused — proved of the death penalty “dependfing] majority opinion But the omits the conclu- circumstances;” on the neither was she “un- sion of what was originally prosecutor’s alterably opposed to the death sentence as a examination: punishment However, for [some crimes].” “THE right. may COURT: All You ex- the trial interrupted court Bradley’s first further, amine if you wish. response with, in this vein passWe on that issue. [PROSECUTOR]: “Well, would your permit conscience you You are not imposing [DEFENSE]: circumstances, ma’am, under some to vote challenge? imposition of death?” No.” [PROSECUTOR]: Bradley replied that, truthful, to be she Apparently majority opinion labels Then, would have to answer “no.” after any response group responses which stating to the court that she was not unal- jur- reveal to be a qualified capital terably opposed to penalty the death “equivocation;” or as crimes, illustrative is the fol- added, “Now, some she I don’t know lowing exchange which is very good that’s a not otherwise al- answer.” The trial judge replied, opinion: luded to “Well, it isn’t “[By but it’s a bad answer Defense be- Counsel] * * * cause it conflicts your with other an- Q: case, In such a killing of a

swer.” child, child, killing the intentional of a you penalty could vote for the death It seems rather clear to me you jury? that case if were on the was asserting a belief in the viability capital punishment case, Yes, appropriate I think I A: could then. just point, my place put questions don’t feel it is At this after five from A: counsel, anybody judge interrupted defense to death. excused, following:

with the THE COURT: You will be ma’am. interrupt you you very “THE COURT: Let me here. Thank much.” you interruption against You told us several times This are so of defense counsel’s cross penalty you sponte sua could not vote for voir dire of Smith it? and the virtual Yes, right. A: that’s of her the trial court dismissal constitute Now, which is it? Is that what risky undertaking THE COURT: in terms “method your feeling Witherspoon. is? selection” condemned somebody my feeling especially A: That’s what If is. the venirewoman who twice said proved somebody to me that would responsible” do she would not like want or “to be again, really myself. then I am not sure of “deciding somebody put should be death,” id., you’re 1773; THE COURT: I don’t understand what 391 U.S. at 88 S.Ct. at talking you about now. Are Supreme assumption so Court scotched an penalty juror “thereby prospective death not vote send that such a affirms any a man to death under circumstances? that he could never vote in favor of it or that he doing How do feel about that? would not consider so in case before him,” id., A: Under circumstances? at n. at 1774 n. 9. Here, however, expression THE COURT: That’s what I asked be- Smith’s last does negate fore? her earlier affirmations. to some Q: Now, spell that would finish that’s not we have here what nevertheless, can’t but ... there ... other can do it or boy. are old Now killing intentional circumstances where you?” could, if the were circumstances such doubts Bradley again expressed Mrs. justified, ... it would be vote for penalty.” to “write a death ability about her penalty? example, As an Brad- passed When back to defense counsel killing, an intentional while anoth- killing could and says of me ley “part conceded going er crime is on. Her voir dire part says of me I couldn’t.” A: That’s what I said. That’s the thus, concluded examination was only I could vote for a way say, I could Well, that I don’t be- say “A: I would death penalty is if it was an intentional a I make the decision for lieve thing protect or minor that couldn’t death. person’s themself [sic].” Q: means not sure? Which Defense counsel at point this reminded right. A: That’s Bradley all that murders would have be means to me I’m THE COURT: Which

intentional, understood, asking her if she Thank Mrs. going you. to excuse stated, and on her affirmative “All reply, will be excused. Was Bradley. You right. We are limiting this to intentional * * * there or not? Clerk killings;” asking and on whether again BAILIFF: I assume he is. penalty” she could “vote for the death not, If he is be sure THE COURT: the “circumstances severe or revolt- [were] address. Is that an verify Bradley’s Mrs. ing shocking enough,” replied: she apartment? “I feel like I am contradicting myself. Yes. BRADLEY]: [MRS. some I feel cases like I could if I knew all the apartment THE COURT: Get the evidence. I feel penal- like the death we will mail a check because number ty pretty strong.” there. if the clerk isn’t Whereupon interrupted, judge You objection my ruling. You “Yes, observing, is kind of final Mrs. are excused now.” Bradley,” again stressing urgency that commitment, First, majority “get apparent the court a it is definite concluding objection which is not make. no easy opinion don’t errs imagine sit action in exclud- every- around and drink tea offered to the trial court’s day penalty.” and discuss the death I am cer- ing Bradley challenge. without again Bradley judge’s trial court then elicited willing from to defer to the trial tainly permit that her “conscience ruling to his acknowledgement [would] [her] record, imposition ... to vote for the of the death the face of the spread which is penalty ... if it was one of those two was enti- that defense counsel and believe cases.” The trial court continued: due give this Court would tled to assume Thus, view, the iny deference thereto.

“THE COURT: You told us— when reversible error trial court committed A: I know I said and no. yes she when Bradley sponte he excluded sua THE three COURT: You told us about disqualified absolutely to be shown now, things, different which is under- (3) (4), Y.A.C. 35.16(a)(2), under Article very helpful. standable but not C.P. think, just A: don’t tell truth, good I would be on a mur- about very my deepest But reservation holding der trial. opinion concerns majority judge’s to the trial “give due deference THE to find out trying COURT: We are * * * discretion,” explicat- fashion any without thing. one little Frances [Can “discre- limitations on that togeth- ing acceptable Bradley sit and work on] tion;” whether can we determine er case how jurors with eleven other when we has occurred she write a death “abuse of discretion” might conceive and have failed to delineate what so that the trial penal- discre- court can assess tion entails? it may appropriate While ty. in some cases to wholly defer to the trial Who knows what Mrs. would judge’s “credibility calls,” such should be have said had she understood the true na- the case only where a careful and faithful role,” Adams, ture of her “more limited review of the cold record fails to communi- supra, 448 at at 2526. U.S. cate to us the “feelings,” “beliefs” and “at- titudes” held Neither do we know from the record re- venireperson garding the death penalty. The voir dire whether could have “followed the examination of Mrs. Bradley does not court’s Again, instructions.” she was never present such a case. asked if she could. Had trial court allowed full exploration and fair of these Patently, judge was of the belief taking crucial areas before over the voir issue is prospective whether a dire examination and then Brad- dismissing juror could “vote for” or “write” a death ley sponte, sua likely record would show penalty. Inquiries along other lines —in- cluding those an elaboration of her statement —“In some suggested by Witherspoon interrupted —were and treated as irrele- cases I feel like for the death [vote by vant the trial court. In the case of Mrs. if I knew the penalty] all evidence.” Bradley, it was judge the trial who branded It is most that the fails perplexing Court responses her as “conflicting,” and diverted jury to condemn such a “method of selec- attempts by the attorneys clarify to tion,” it explicit legitimation but the as relevant attitudes. “discretionary” is incomprehensible. only We can speculate about whether is Bradley, What we do know about Mrs. Bradley could “consider” death penalty the that she believed the death is an and fairly special answer the issues accord- cases, in some but appropriate punishment evidence, ing to the never since she was “writing a difficulty would have some asked whether she could.6 What does “vote Now, if knew only death sentence.”7 we penalty” mean? mem- Every death understanding “writing what her ber of the Court has seen voir dire was, might sentence” have sufficient juror examinations in which a prospective justify excluding information to her.8 But unequivocally states that he could “never not, we can conclude only because we do imposition vote for of the death penalty,” disqualified, that she was not shown to be only to make an about face when he fully to exclude her. and was therefore error comprehends jurors in Texas are not judges to trial to verdict,” grant power To unlimited upon called to “write a death but to voir examina- questions according parte capital answer to evidence conduct ex dire attitudes, light experience require since Hovila v. In 6. of such more of the State (Tex.Cr.App.1975), premise denotatively refining the in and the trial court jury them, recognize that “the will know will that their answers “constitutes a failure to pun- complexity determine whether the defendant is to be understand the realities” and id., by imprisonment,” ished life at psyche. human 294, assumption is not a reliable in dire voir Texas, obey examination. In “to his oath and doubt whatever that venire- 8.There can be no willing law,” juror “must be follow not Virginia believed that in order woman Gonzales only accept to circumstances certain pre- required to to serve on the she was an- acceptable penalty but also to death is judge that she would vote commit to the trial statutory questions swer the without conscious misunderstanding penalty. is for the death Her bias," Adams, supra, distortion or 448 U.S. at completely of the man- understandable view 46, willingness 100 S.Ct. at 2526. That can conducted ner in which the voir dire was only proper be determined from to answers Though throughout too was nev- this case. she questions designed to ascertain it. Bradley’s improper disqualified, er shown to requires of the case. alone reversal exclusion majority persists characterizing If 7. such 399, Georgia, Davis 97 S.Ct. 429 U.S. “equivocation,” attitudes as then so be But it. (1976). L.Ed.2d properly respect” consistency “to not the sheer

4H Illinois, Witherspoon tion on an then straints set out in improper criterion9 and exclusions, 20 L.Ed.2d 776 sponte make sua U.S. perhaps dire A careful review of voir dangerous way most Court has taken with Bradley, conjunction examination of date, along a mighty thin line.10 law, majority convinces me that I dissent. it com- holdings, today in error on both failing grant appel- pounds that error ONION, P.J., and ROBERTS TEAG- rehearing lant’s and reverse the motion UE, JJ., join. conviction. judge reflects that ON record APPELLANT’S MOTION FOR Bradley prosecuting excused without REHEARING OVERRULED WITH- manifesting any challenge attorney OUT WRITTEN OPINION serving juror as a in this cause. TEAGUE, Judge, dissenting. fact, prosecut- the record reflects that Appellant rehearing contends on this not ing attorney did original Court erred in its opinion when it cause, serving juror in this but upheld the trial court’s exclusion of venire- interpose a chal- affirmatively declined person Bradley,1 Francis which exclusion lenge Bradley serving juror. as a occurred on trial court’s own motion. excuse legal authority court had no Because I find that the majority erroneous- Bradley on its own motion. It is self-evi- ly overrules opinion without written dent that a trial under the law this State appellant’s motion rehearing, I must court should not on its own motion excuse a respectfully dissent. The motion should be prospective juror for cause —unless granted judgment and the of conviction juror disqualified is for service in absolutely reversed. a criminal case. v. 595 Esquivel 516, 524 Also (Tex.Cr.App.1980). S.W.2d original submission, On majority of this 797, see Martinez v. 621 798- S.W.2d held, alia, Court inter that the appellant 799 (Tex.Cr.App.1981), and the cases cited had failed perfect ground to his of error therein; in as well as the cases collated Yol. that the trial court had erred by excusing 25, Texas under No. 109. Digest Jury Key Bradley. Nevertheless, the majority also substantively held that Bradley’s cases, views According to the above and Art. were 35.19, V.A.C.C.P.,2 consistent with the constitutional re- the term “absolute dis- 9. The juror’s ability 35.16(a)(2), (3), (4) provide writer’s conviction that a Art. as follows: penalty, (a) to “vote challenge objection for” or “write” a death is A for cause is an ability juror immaterial to the fairly particular juror, alleging of that serve to made to a some fact impartially capital jury, on incapable a Texas which renders him or unfit to serve very recently has been jury. challenge may fortified. See Alderman on the A for cause be Austin, (CA5, 1981). v. 663 F.2d 558 made either the state or the defense for following one of the reasons: 10. That is “the line of neutrality” which the (2) That he or has been convicted theft Texas, just prosecution, State of is any felony; constitutionally produce forbidden to cross and (3) legal That he is under indictment or other jury uncommonly willing “a to condemn a man accusation die,” 520, Witherspoon, supra, to 391 U.S. at (4) That he is insane or has such defect in 521, 88 at S.Ct. 1776. organs feeling hearing, or such bodily or mental defect of disease as to ren- pertinent portions Bradley’s 1. The voir dire service, jury der him unfit for or that he is reproduced examination are either verbatim or legally blind and either the court or the state adequately Judge summarized in Clinton’s dis- pro- in its discretion or the defendant or the senting opinion submission, original on juror spective in his discretion is not satisfied reproduced again opinion. need not be in this jury particular that he is fit for service in that 35.19, V.A.C.C.P., provides 2. Art. as follows: case. juror impaneled 35.16(a) juror appears provides No shall be that “No when Art. also subject third, second, appears impaneled he is to the or fourth when it that he is shall be subject 35.16, second, challenge though grounds cause of parties in Article both third or fourth to above, may although challenge consent. for cause set forth 412 959, second, 497,

qualification” 102 70 L.Ed.2d 374 encompasses third, and fourth causes for listed been applied capital This rule of law has 35.16(a), under Art. V.A.C.C.P. proceedings. have murder jury selection A corol carefully responses Bradley reviewed the lary objection contemporaneous rule during gave her voir dire examination and of law is the that before error requirement have not found the indication slightest preserved purposes, is review appellate absolutely disqualified jury she ser- specific. be This rule objection must provisions vice under the of Arts. 35.16 and applied has also been murder voir 35.19, Thus, supra. the trial court should involving jurors dire exclusion of situations not have sua sponte. excused challenge by parties. in the absence of also find that was not such error harmless 344, (Tex.Cr.App.1978); Bodde v. 349 S.W.2d error because the had State exhausted all of State, 556 ns S.W.2d Bur peremptory prior its challenges the con- Moore v. (Tex.Cr.App.1977); clusion selection this cause. And (Tex.Cr.App.1976). S.W.2d not, if it had Grijalva even this Court in require courts appellate reason State, 614 (Tex.Cr.App.1980), S.W.2d 420 objection made as must be soon as overruling Chambers v. ground objection becomes is apparent held (Tex.Cr.App.1978), the exist- requirement obvious. The additional ence of unused peremptory challenges State objection specific, in order must does not serve to make harmless an errone- preserve appellate error review properly exclusion venireperson ous of a in a capital purposes, policies. stems from two murder case. succinctly the rule twofold reason for As to holding this that the appel Court’s stated in Zillender v. timely specific lant failed to make a There, this Court (Tex.Cr.App.1977). objection to the excusing trial court’s Brad following: stated the ley, I find it necessary discuss the con First, objection is specific required temporaneous objection specific rules of judge inform the of the basis of the objection law. The contemporaneous rule objection opportunity him the and afford of law is a requirement law that before a Second, specific objection to rule on it. appeal defendant can complain about required opposing counsel an to afford action of court or prose some remove the opportunity to cuting attorney upon it is incumbent him to McCormick, testimony. other supply objection very make an first opportu at the Evidence, Law Handbook of the Sec. nity complaint whatever his refers. —to 52, 113,115 1972); Jones, p. (2d ed. 4 The State, (Tex.Cr.App.1976), Boulware v. 28:2, Evidence, (6th p. Law of Sec. 276 ed. den., 959, 430 t. U.S. 97 cer S.Ct. 1972). 1610, (1977); 51 L.Ed.2d 811 Crawford v. 172 Tex.Cr.R. Also see Xanthull v. 617 (Tex.Cr.App.1981), S.W.2d 925 481, (1962); 358 Fowler v. S.W.2d 631 denied, 931, 101 3067, cert. 452 U.S. S.Ct. 69 600, 352 838 171 S.W.2d Tex.Cr.R. (1981); 431 L.Ed.2d Zillender v. 557 making responsibility for Ordinarily, the 515 (Tex.Cr.App.1977); S.W.2d Sullivan v. objection a rests with timely specific Park, 229, 233-234, Hunting Little 396 U.S. timely to complaining party. Failure 400, 402-03, (1969); 90 S.Ct. 24 L.Ed.2d 386 usually will consti- specifically object 375, Georgia, v. 75 Williams 349 U.S. S.Ct. However, objection. tute waiver of the be- 814, (1955); 99 v. Henry L.Ed. 1161 Missis presents unique cause the instant case a 443, 447-448, 564, sippi, 379 85 U.S. situation, agree appel- I am to unable Isaac, (1965); Engle 13 L.Ed.2d 405 v. objection or that the to object lant failed to 456 U.S. U.S. L.Ed.2d (1982); venireperson the trial exclusion of v. court’s May (Tex.Cr.App.1981), granted, untimely. Bradley cert. U.S. was grounds parties may grounds parties of chal- All such both other in whose favor consent. challenge party lenge may

for be waived exist.” Although the record any ly judge does not reveal when it was the trial himself who objection manifestation of a defense ob noting appellant’s took initiative in court, Bradley’s exclusion jection trial sua Bradley. to his exclusion of As sponte, nevertheless, it instead reflects the Judge dissenting opin in Clinton noted his trial acknowledgment court’s of appellant’s submission, ion original appellant should objection to the exclusion of Bradley. Prior entitled, appellate for review purposes, to excusing Bradley, the trial court stated rely judge’s acknowledgment on the trial into the following: [appel- record the “You may his I also he objection. would hold objection have to my ruling.” record, lant] believe, light do so. I in of this also quite appel that it would be unfair to the noted, As previously primary purpose lant to no error was preserved; hold that the specific objection rule is to ensure that effect, judge, after the trial in especially the trial court and opposing counsel are assured error in Brad any ground informed of the objection so that ley’s preserved exclusion was in fact they possibly remedy can take action to appellate light review. the action by cure the noted defect or action. Another the trial I judge, believe that hold the reason for specific objection rule is to preserved appellate error was not re ensure that adequate court has impugn view would tend to the fairness and opportunity to objection. rule on the Zil This, judiciary. I decline to integrity instance, lender supra. In this do. neither of the above purposes would be by holding served that the did not Having previously found that such error preserve error the trial court’s wrongful was appellant, grant harmful would exclusion of the venireperson Bradley. appellant’s rehearing motion for and re- record makes it apparent to me that judgment verse the of conviction for the Bradley’s focus of voir dire examination above stated reasons. was on her regarding views the imposition submission, original majority On im of capital punishment, ability and her plicitly judge’s found that ac render a verdict which would result knowledgment objection appellant’s noted, sentence of death. As prosecut preserve any potential sufficient to error ing attorney affirmatively declined to inter reference to his claim that pose cause to serv improperly light excluded in of Wither ing juror. court, as a The trial neverthe Illinois, how spoon supra. majority, less, sponte sua stating and without ever, excluding held that the trial court’s action, reasons for its excused Bradley. Witherspoon; with Bradley was “consistent However, doing so, stated explicitly reflect that have answers would [her] [she] the following: may “You fair and impar been unable to serve [a] my is, ruling excusing to the of Brad [that juror Witherspoon.” tial consistent with

ley].” circumstances, Under these I am A totally disagree with this conclusion. able to state that apparent the most de transcription careful review of the of Brad fense would have been that that she ley’s voir dire examination reflects trial court complete excused in the Supreme improperly excused under authority absence of to take such action. Adams Witherspoon Court decisions of therefore believe that under the cir above Texas, 38, 2521, U.S. S.Ct. cumstances, require to further appellant to majority’s holding L.Ed.2d synonymous made additional and is Constitutionally unsound. statements judge just had Supreme Witherspoon, Court in su- made would be to mandate that “a pra, mandated that sentence of required to do a useless act. The law by excluding cannot be carried out venire- ordinarily require doing does not of a record, men for cause because voiced light simply they useless act. of this I am objections unable to the death general to state that the trial court was ground objection; religious scruples unaware of a conscientious or especial expressed its infliction.” 392 majority U.S. at in denying leave to at 20 L.Ed.2d file his motion for rehearing. 784-785. In Ad- ams, supra, the Supreme Court held that ONION, P.J.,

V.T.C.A., and CLINTON and MIL- Code, Penal 12.31(b), Sec. which LER, JJ., join opinion. in this statute disqualifies prospective juror who is unwilling to swear that mandatory

penalty of death imprisonment or life offense of murder will not affect person’s declarations on factual issues case,

in the stated a disqualification stan-

dard impermissibly broader than Wither- spoon, supra, and cannot be as a used basis FINCH, Bobby Appellant, Dale for disqualification independent of Wither- spoon, supra. Texas, Appellee. The STATE of The voir dire examination of Bradley re- No. 337-82. flects although she was unalterably opposed to the death penalty, she did not Texas, Appeals Court Criminal think that she imposi- could “vote for the En Banc. However, tion of death.” she qualified her June 1982. stating answers first she could “vote for penalty” the death if “it was an thing

intentional or a minor that couldn’t

protect Bradley’s voir dire ex- [himself].”

amination concluded with the following re-

sponses: Well,

Bradley: I would say that don’t

believe I could make the for a decision

person’s death.

Defense Attorney: Which means not

sure?

Bradley: right. That’s

At during no time voir dire anyone did

ask Bradley any questions concerning the

special 37.071, issues set forth in Art. V.A.C.

C.P. Bradley’s responses also indicate that

in the she abstract was unsure whether she impose penalty.

could vote to

Thus, it is conclusive that did not “absolutely unmistakably

make it

clear” that she could not follow the law. judge’s excluding improp-

The trial her was Adams, guidelines supra,

er under the Witherspoon, supra. For this addition- reason, compelled

al I am to dissent to the rehearing appellant’s

denial of motion for opinion.

without written Therefore, reasons, Lewellen, all the above Stephenville, appel- Garry respectfully dissent action of the lant.

Case Details

Case Name: Hernandez v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jan 20, 1982

Citation: 643 S.W.2d 397

Docket Number: 68008

Court Abbreviation: Tex. Crim. App.