Cristopher Fate Graves v. the State of Texas

Opinion filed January 9, 2025

In The

Eleventh Court of Appeals
__________

No. 11-23-00267-CR
__________

CRISTOPHER FATE GRAVES, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 106th District Court
Gaines County, Texas
Trial Court Cause No. 21-5554

MEMORANDUM OPINION
Appellant, Cristopher Fate Graves, was indicted for the offense of
fraudulently obtaining and possessing identifying information, a state jail felony.
TEX. PENAL CODE ANN. § 32.51(c)(1) (West Supp. 2024). After he pled guilty to
this offense, the jury assessed his punishment at two years’ confinement in a state
jail facility and a $2,400 fine. PENAL § 12.35(a), (b). The trial court sentenced
Appellant accordingly. In a single issue, Appellant asserts that the trial court abused
its discretion when it denied his challenge for cause to a certain venire member. We
affirm.
I. Factual Background
Because the only issue in this appeal concerns the trial court’s denial of
Appellant’s challenge for cause of venire member S.P., we will restrict our recitation
of the facts to those relevant to this issue.
Once the summoned venire members were seated and sworn, the trial court
began directing qualification questions to the venire members. One of the questions
posed was whether they could read and write the English language. After asking the
qualification questions, the trial court invited any venire member who believed that
they were disqualified to serve as a juror to approach the bench and explain their
reasons to the trial court and trial counsel. One venire member approached and
advised that he was disqualified because he could neither read nor write.
Later, defense counsel attempted to explain the concept of mitigation and how
it could apply during the punishment phase. Defense counsel defined mitigation as
anything that a juror might consider relevant to reducing one’s culpability and
recommending a proper sentence. Defense counsel then asked each venire member
to answer a scaled question that sought to measure the members’ feelings about the
importance of mitigation in assessing punishment. This question was essentially
framed in the form of a statement: “If a person commits an offense, mitigating
evidence should not matter in setting punishment.” The venire members were asked
to rank their agreement with this statement along the following scale: one-strongly
agree, two-agree, three-neutral, four-disagree, and five-strongly disagree.
When this mitigation question was posed to venire member S.P., she stated:
“I’m confused. I couldn’t understand, I guess.” Defense counsel offered another
explanation and attempted to clarify the purpose of the mitigation question, and
another venire member offered to explain the question to S.P. in German, which
2
apparently is S.P.’s first language. Defense counsel then stated that the parties could
later question S.P. at the bench and continued posing the mitigation question to the
other venire members individually.
Later, the trial court called S.P. to the bench to clarify her understanding of
the mitigation question. The State asserted that the question, as phrased, was not
designed to elicit a proper challenge for cause, but defense counsel expressed
concern about S.P.’s understanding of what mitigation entailed, particularly because
another venireperson had offered to explain it to her in German. S.P. told the trial
court that she was confused by the question. She explained that she was “not good
enough with the English . . . [w]ith the hard words.” The trial court then offered the
following explanation to S.P.:
And his question was, that if he was to put on some evidence saying
about some good things that he had done -- you know, some good things
-- you could consider that. Okay. So the punishment is -- you have to
decide what the punishment will be, but he -- they provide you evidence
of some good things that he’s done. Would you be able to -- would you
be willing to consider some of those good things, or in your mind, it
doesn’t matter? I don’t care how many good things he’s done. If he
committed this crime, then I’m going to punish him based on only the
crime, not good things.
S.P. responded: “If he committed a crime, he is guilty.” The trial court continued:
True, but we’ve -- so if you already found him guilty, now we’re talking
about the punishment. So when it came to decide how to punish him,
would you -- would you consider the good things he’d done, or would
you say, “I don’t care about the good things. I’m only going to consider
his punishment based on the bad thing he did”?
S.P. then responded that even if “good things” were said about Appellant, if he
committed a crime, he should be punished.
Immediately after this, the trial court and defense counsel had the following
exchange:

3
THE COURT: Okay. Sounds to me like she’s about a one or
two . . . I don’t think that’s a reason to strike for cause.
[DEFENSE COUNSEL]: I do have concerns about her ability to
process the English language, I guess.
THE COURT: I mean, I think that she understands -- she . . .
was able to converse with me in English.
[DEFENSE COUNSEL]: Right.
THE COURT: When asked the question about being able to read
and write, she never came forward and said that she couldn’t read or
write. So it may be some -- I mean, I’ll be honest with you. There are
people who English is their first language that -- that don’t understand
the word “mitigation.”
Defense counsel then moved to challenge S.P. for cause because, as he stated, “[T]he
last thing she said . . . she just wouldn’t consider it at all.” The trial court denied the
challenge.
Later, defense counsel used a peremptory challenge to dismiss S.P. and,
because he did, he requested that the trial court grant him an additional peremptory
challenge. In making his request, defense counsel explained that, because the trial
court denied the challenge for cause that he raised as to S.P., it was necessary for
Appellant to use a peremptory challenge to dismiss S.P. rather than using it to
dismiss another objectionable venireperson, B.M., who was later seated and sworn
as a juror. The trial court denied the request and defense counsel replied, “I renew
my objection to the [challenge for] cause.”
II. Standard of Review
We review a trial court’s ruling on a challenge for cause for an abuse of
discretion. Hudson v. State, 620 S.W.3d 726, 731 (Tex. Crim. App. 2021). “[W]e
look to the entire record to determine whether sufficient evidence exists to support
the [trial] court’s ruling.” Id. (citing Davis v. State, 329 S.W.3d 798, 807 (Tex. Crim.
App. 2010)). Because the trial court is in the best position to evaluate a potential

4
juror’s demeanor and responses, the trial court’s ruling is given considerable
deference. Id. (citing Gardner v. State, 306 S.W.3d 274, 295–96 (Tex. Crim. App.
2009)).
III. Analysis
A challenge for cause is an objection that is made to a prospective juror, in
which the party asserting the challenge claims that some fact exists which renders
the challenged person incapable or unfit to serve as a juror. TEX. CODE CRIM. PROC.
ANN. art. 35.16(a) (West 2006). Article 35.16 of the Code of Criminal Procedure
lists specific challenges for cause that may be raised; one such challenge is based on
a juror’s alleged “mental defect” and another concerns whether the juror cannot read
or write. Id. art. 35.16(a)(5), (11). With three exceptions that are not relevant here,
all the grounds for challenges listed in Article 35.16 may be waived. Id.
art. 35.16(a); Vera v. State, 496 S.W.3d 293, 295 (Tex. App.—San Antonio 2016,
pet. ref’d).
In his sole issue, Appellant argues that the trial court abused its discretion
when it denied his challenge for cause to venire member S.P. On appeal, Appellant
characterizes his challenge for cause as a “mental defect” challenge. See CRIM.
PROC. art. 35.16(a)(5). He contends that this ground is not limited to a juror’s level
of intelligence or the presence of a mental disease, but that it also encompasses a
juror’s ability to comprehend “the limited function of a juror,” including the jury’s
role in assessing punishment. He cites to Matamoros, Gardner, and Burton for this
proposition. See Matamoros v. State, 901 S.W.2d 470, 476–77 (Tex. Crim. App.
1995) (“A venireman’s inability to comprehend the limited function of a juror at the
punishment phase of a capital case may constitute ‘such . . . [a] mental defect . . . as
to render him unfit for jury service.’”) (quoting Gardner v. State, 730 S.W.2d 675,
695 (Tex. Crim. App. 1987)); Burton v. State, 805 S.W.2d 564, 568 (Tex. App.—
Dallas 1991, pet. ref’d) (“Low intelligence is not necessarily a ground for challenge
5
under [A]rticle 35.16(a)(5); however, the venireman must be able to comprehend the
limited function of a juror.”).
A. Potential Harm and Preservation of Error
We first consider whether Appellant has shown that he was harmed by the
trial court’s adverse ruling. Hudson, 620 S.W.3d at 729 (addressing harm before
addressing whether the trial court abused its discretion in denying a challenge for
cause); Comeaux v. State, 445 S.W.3d 745, 747 (Tex. Crim. App. 2014) (“The issue,
however, is one of harm, not preservation.”); see Johnson v. State, 43 S.W.3d 1, 5
n.6 (Tex. Crim. App. 2001) (stating that “[i]n the past we have confused preservation
of error and harm issues within the context of an erroneous denial of a challenge for
cause,” and noting that the steps that courts have sometimes called necessary for
preservation are really to show harm).
Harm from the trial court’s erroneous denial of a defendant’s challenge for
cause focuses on whether the defendant was wrongfully stripped of a peremptory
challenge. Hudson, 620 S.W.3d at 729. Therefore, in addition to demonstrating trial
court error, Appellant must show that he complied with five steps: (1) he made a
“clear and specific challenge for cause” against a venire member; (2) he used a
peremptory challenge on the complained-of venire member; (3) he exhausted all of
his remaining peremptory challenges; (4) he requested an additional strike and the
request was denied; and (5) an objectionable juror served on the jury. Id. at 729–30
(quoting Comeaux, 445 S.W.3d at 750). These steps are intended to allow the trial
court every opportunity to correct its error and for the defendant to demonstrate that
he was unable to use his peremptory challenges in the way that he desired. Id.
On appeal, Appellant contends that S.P. suffered from a mental defect that
rendered her incapable or unfit to serve as a juror under Article 35.16(a)(5). He
contends that S.P. was confused about the concept of mitigation and how it applied
to the jury’s role in assessing punishment. He also asserts that the trial court’s efforts
6
to clarify the matter with S.P. did little, if anything, to resolve her confusion.
Appellant claims that, contrary to the trial court’s belief that S.P. expressed a strong
agreement (“one” on the scaled question) or an agreement (“two” on the scaled
question) to the mitigation question, S.P.’s response merely stated a truism—that if
Appellant was guilty, he should be punished. Appellant reasons that, “[r]egardless
of whether her limitations on her understanding stemmed from language or other
factors, the evidence clearly demonstrated that she did not understand the role of a
juror during the punishment phase.”
The State contends that Appellant failed to make a “clear and specific”
challenge for cause. The State asserts that the concern expressed by Appellant about
S.P. was that she would not consider mitigating evidence in assessing punishment.
The State further contends that, although defense counsel’s initial concern involved
S.P.’s ability to understand some concepts in English, defense counsel later agreed
with the trial court’s assessment that S.P. was able to converse in and understand
English. Therefore, the State reasons, Appellant’s challenge for cause was not clear
and specific because it did not allege that a mental defect—Appellant’s argument on
appeal—caused S.P. to be incapable or unfit to serve as a juror. And, according to
the State, because Appellant did not argue before the trial court that a mental defect
was the ground on which his challenge for cause was based, that argument has been
waived on appeal.
We agree with the State that Appellant failed to make a “clear and specific”
challenge for cause. The “clear and specific” requirement ensures that the defendant
alerts the trial court to the defendant’s complaint in a timely manner so that it may
be addressed. Hudson, 620 S.W.3d at 729–30. In this instance, defense counsel did
not specifically state an enumerated ground for his challenge under Article 35.16(a);
he merely stated that he wanted to assure that S.P. understood the concept of
“mitigation,” and that he did not want the other venire member to explain it to S.P.
7
in German. After S.P. stated that the defendant could “do a lot of good things” but
if she believed he committed the offense “he needs to be punished,” the trial court
asked defense counsel if her response sufficiently answered his mitigation question.
Defense counsel replied, “I think so,” and then stated that he had “concerns about
her ability to process the English language.” Defense counsel and the trial court then
briefly discussed S.P.’s English fluency. During their discussion, the trial court
expressed its belief, based on its observations of and discussions with S.P., that S.P.
understood English, and defense counsel responded: “Right.” After this, defense
counsel asserted a challenge for cause, and in referring to S.P.’s answer to the
mitigation question, stated: “[B]ecause I think the last thing she said . . . she just
wouldn’t consider it at all.” Now, on appeal, Appellant asserts that S.P. was
disqualified under subsection (a)(5).1
1. Language Comprehension Falls Under Subsection (a)(11)
As an initial matter, we note that Appellant has waived any complaint
regarding S.P.’s alleged inability to comprehend English. In this regard, Texas
courts have repeatedly held that a lack of fluency in the English language falls under
subsection (a)(11)—that the juror cannot read or write. See, e.g., Reydom v. State,
No. 05-19-01486-CR, 2020 WL 7693179, at *4 (Tex. App.—Dallas Dec. 28, 2020,
no pet.) (mem. op., not designated for publication) (“Encompassed in [Article
35.16(a)(11)] is a juror’s inability to understand English.”) (citing Montoya v. State,
810 S.W.2d 160, 170 (Tex. Crim. App. 1989)); Vera, 496 S.W.3d at 295 (same);

1
Although Appellant admits that a juror is not required to give effect to any specific mitigation
evidence, citing Rachal v. State, 917 S.W.2d 799, 813 (Tex. Crim. App. 1996), he nonetheless contends
that jurors should understand that mitigating factors may be presented during the punishment phase and
that this evidence is relevant to the jury’s decision to assess a particular sentence.
8
Stillwell v. State, 466 S.W.3d 908, 912 (Tex. App.—Fort Worth 2015, no pet.) (citing
Montoya, 810 S.W.2d at 170).
Unlike other subsections in Article 35.16(a), because neither subsection (a)(5)
nor (a)(11) encompasses an absolute disqualification, challenges based on these
subsections must be raised to and addressed by the trial court before the jury is
empaneled and sworn; otherwise, a party forfeits the right to complain of and to rely
on those bases on appeal. CRIM. PROC. arts. 35.16(a), 35.19; see Parnell v. State,
No. 02-19-00070-CR, 2020 WL 5666565, at *7 (Tex. App.—Fort Worth Sept. 24,
2020, pet. ref’d) (mem. op., not designated for publication); see also Webb v. State,
232 S.W.3d 109, 112 (Tex. Crim. App. 2007); Stillwell, 466 S.W.3d at 913.
Here, it appears that Appellant eventually agreed with the trial court that S.P.
could sufficiently comprehend English. Moreover, Appellant’s issue on appeal is
grounded in subsection (a)(5)—a mental defect challenge—and therefore does not
comport with any argument or objection that he made before the trial court that S.P.’s
comprehension of English was the reason for her alleged inability to understand the
jury’s role. See Webb, 232 S.W.3d 112; Stillwell, 466 S.W.3d at 913; Parnell, 2020
WL 5666565, at *7; see also TEX. R. APP. P. 33.1(a)(1)(A); Thomas v. State, 505
S.W.3d 916, 924 (Tex. Crim. App. 2016) (the arguments on appeal must comport
with the objection raised at trial); Arevalo v. State, 675 S.W.3d 833, 845 (Tex.
App.—Eastland 2023, no pet.).2

2
Moreover, defense counsel did not ask S.P. any questions regarding her comprehension of the
English language, which likely forfeited Appellant’s right to complain about this basis on appeal. See
Parnell, 2020 WL 5666565, at *7 (“Following Stillwell and Vera, we hold that [the] [a]ppellant forfeited
the right to complain of Gonzalez’s presence on the jury on the basis of his inability to understand English
by not questioning the venire panel about their ability to understand English and by not raising a
timely challenge for cause to Gonzalez during voir dire.”); Hawkins v. State, No. 10-18-00270-CR, 2020
WL 5938818, at *2 (Tex. App.—Waco Aug. 10, 2020, pet. ref’d) (mem. op., not designated for publication)
(“Hawkins never questioned the juror regarding her ability to read or write during voir dire . . . . the trial
court determined that the juror was able to communicate with the trial court adequately and Hawkins never
attempted to show that the juror was wholly unable to speak, read, or comprehend English.”); see also Vera,

9
Also, as noted above, Appellant cites to Matamoros, Gardner, and Burton for
the proposition that subsection (a)(5) is not limited to a prospective juror’s lack of
intelligence or the presence of a mental disease, but that it also encompasses a
prospective juror’s ability to comprehend a juror’s role and responsibilities,
including the jury’s role in assessing punishment. See Matamoros, 901 S.W.2d at
476; Gardner, 730 S.W.2d at 695; Burton, 805 S.W.2d at 568. Contrary to
Appellant’s argument, these cases simply hold that it is the inability to understand
the juror’s role, rather than the juror’s lack of intelligence “per se,” that renders a
potential juror incapable or unfit to serve on the jury. See Gardner, 730 S.W.2d at
695. One such sign of a mental defect may be the trial court’s inability to determine
the venire member’s views for the purpose of deciding whether other possible
grounds of disqualification exist. Matamoros, 901 S.W.2d at 476–77 (citing
Wainwright v. Witt, 469 U.S. 412, 424 (1985)). Thus, the cases cited by Appellant
do not support the proposition that one’s difficulty or inability to understand English
is tantamount to a “mental defect.” See Stillwell, 466 S.W.3d at 911–912 (holding
that a juror’s inability to understand English is not a disabling condition, but rather
is included within and pertains to the ground for a challenge for cause on the basis
that the venire member cannot read or write); see also Parnell, 2020 WL 5666565,
at *7.

496 S.W.3d at 295–96 (“[The] [a]ppellant’s failure to ask specific enough questions to determine whether
anyone on the venire panel had difficulty reading, writing, or understanding English waived any complaint
for our review.”); Stillwell, 466 S.W.3d at 913 (“In this case, no one questioned the panel during voir dire
about their ability to understand English. Regardless of a county’s practice in screening potential jurors,
the attorneys are not relieved of their duty to determine [the] capability or fitness of the jurors during voir
dire.”).
Even though another venire member offered to explain the mitigation question to S.P. in German,
defense counsel did not present any questions to S.P. about her ability to understand English. And although
defense counsel informed the trial court that he had some “concerns about her ability to process the English
language,” when the trial court noted that “[w]hen asked the question of being able to read and write, [S.P.]
never came forward and said that she couldn’t read or write,” defense counsel likewise did not ask S.P. any
questions about her English comprehension.
10
2. Appellant’s Challenge Was Based on S.P.’s Beliefs About Mitigation
As discussed above, after the trial court explained the concept of mitigation
to S.P., she responded that even if he “[did] a lot of good things,” if he committed
the offense, “he needs to be punished.” The trial court asked defense counsel if
S.P.’s response sufficiently answered his question, to which defense counsel
responded: “I think so.” The trial court then stated that S.P.’s response appeared to
be a “one” (strongly agree that mitigation evidence should not matter in setting
punishment) or a “two” (agree that mitigation evidence should not matter) on the
scaled question. Defense counsel did not disagree, but instead expressed concerns
about S.P.’s ability to understand English. When defense counsel later challenged
S.P. for cause, his stated reason was: “[B]ecause I think the last thing she said . . .
she just wouldn’t consider [mitigation] at all.” Thus, the challenge that Appellant
raised against S.P. was explicitly and only based on her response that she would not
consider mitigating evidence in assessing punishment.
Therefore, we agree with the State that, based on this record, Appellant failed
to show harm or preserve a complaint for our review because he did not make a
“clear and specific” challenge for cause on the basis that S.P. suffered a mental
defect. See Gardner, 306 S.W.3d at 300 (“Because appellant failed to describe what
type of challenge he was exercising or the specific basis for a challenge for cause (if
he intended a challenge for cause), he failed to preserve any issue for appellate
review concerning this venire member.”).
B. On the Merits, the Trial Court did not Abuse its Discretion
Nevertheless, even if Appellant had satisfied the steps that are necessary to
show harm, his argument fails on the merits. After S.P. expressed confusion about
defense counsel’s mitigation question, the trial court, defense counsel, and the State
spoke with her at the bench about her response to defense counsel’s inquiry. The
trial court explained the concept of mitigation and S.P. responded that even if
11
Appellant had done “a lot of good things,” he still needed to be punished for the
crime that he committed. Defense counsel agreed that this response answered his
question. The trial court then stated the basis of S.P.’s response to the scaled
question. Defense counsel did not disagree with the trial court’s explanation, but
only expressed concern about what he perceived to be S.P.’s inability to understand
English. The trial court explained that, in its view, S.P. was able to converse in
English at the bench, that she had not responded negatively to the question about a
juror’s ability to read and write, and that even some people whose first language is
English do not understand the meaning of the term “mitigation.” Moreover, the trial
court correctly noted that S.P.’s answer to the mitigation question was not a valid
ground upon which to assert a challenge to her for cause.
After questioning S.P., Appellant never claimed that S.P. was unable to
understand the jury’s role; in fact, defense counsel agreed that her response answered
his question about mitigation, and then he explicitly challenged her for cause based
on that response. Importantly, the jury is not required to consider mitigating
circumstances in non-death penalty cases. See CRIM. PROC. art. 37.071, § 2(d)(1)
(West Supp. 2024); Lamar v. State, No. 04-13-00326-CR, 2014 WL 3747252, at *2
(Tex. App.—San Antonio July 30, 2014, no pet.) (mem. op., not designated for
publication). Nor did the trial court’s punishment charge include a mitigating
circumstances instruction. And, although many other venire members provided
responses of “strongly agree” or “agree” to defense counsel’s mitigation question,
none of those venire members were challenged for cause.
Appellant states in his brief that S.P.’s response provided “scant reassurance
that she actually understood the jury’s role in considering mitigating evidence in
deciding how to punish an offender who had been found guilty.” In evaluating the
trial court’s challenge-for-cause rulings, we defer to the trial court’s determinations

12
because it is in the best position to evaluate a potential juror’s demeanor and
responses. Hudson, 620 S.W.3d at 731 (citing Gardner, 306 S.W.3d at 295–96).
We conclude that the record before us does not show that S.P. had a mental
defect that rendered her incapable or unfit to serve on the jury. See CRIM. PROC.
art. 35.16(a)(5). Therefore, the trial court did not abuse its discretion when it denied
Appellant’s challenge for cause against her. Accordingly, we overrule Appellant’s
sole issue.
IV. This Court’s Ruling
We affirm the judgment of the trial court.

W. STACY TROTTER
JUSTICE

January 9, 2025
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

13