Nacxeli Miorales v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-24-00214-CR

NACXELI MIORALES, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the County Court at Law No. 2
Lubbock County, Texas
Trial Court No. CC-2023-CR-0110; Honorable Tom Brummett, Presiding

February 4, 2025
MEMORANDUM OPINION
Before QUINN, C.J., and PARKER and DOSS, JJ.

Appellant, Nacxeli Miorales,1 appeals from her conviction for driving while

intoxicated. Though initially charged with Class A misdemeanor DWI for having a breath

alcohol concentration of 0.15 or higher,2 a jury found her guilty of the lesser-included

Class B misdemeanor offense.3 The trial court assessed punishment at 180 days in jail,

1 Although the record indicates Appellant’s surname is properly spelled “Morales,” we use

“Miorales” to maintain consistency with the charging instrument, jury charge, and judgment.
2 See TEX. PENAL CODE ANN. § 49.04(a),(d) (providing offense is a Class A misdemeanor).

3 See TEX. PENAL CODE ANN. § 49.04(a),(b) (providing offense is a Class B misdemeanor).
probated for 18 months. In five issues, Appellant challenges the denial of challenges for

cause to four potential jurors and alleges a violation of her confrontation rights. We affirm.

Analysis

Because Appellant does not challenge the evidence supporting her conviction, we

address only the facts relevant to her issues.

Issues 1–4: Jury Selection Challenges

In her first four issues, Appellant claims the trial court wrongly denied her

challenges for cause to venirepersons Sprabeary, Hough, Woodward, and Rackler. To

preserve such complaints, she needed to demonstrate that she: (1) made a clear and

specific challenge for cause that was denied; (2) used a peremptory strike on the

complained-of venireperson; (3) exhausted all peremptory challenges; (4) requested and

was denied additional strikes; and (5) showed an objectionable juror sat on the jury.

Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim. App. 2002). These requirements

ensure the trial court can address and cure any error. Comeaux v. State, 445 S.W.3d

745, 749 (Tex. Crim. App. 2014).

The record contains no strike lists. Therefore, Appellant cannot show she used

peremptory strikes on any challenged venire members or exhausted her strikes. This

failure waives her complaints about the trial court’s rulings on jury selection. See

Henderson v. State, Nos. 07-22-00303-CR, 07-22-00304-CR, 07-22-00305-CR, 2023

Tex. App. LEXIS 8617, at *30 (Tex. App.—Amarillo Nov. 15, 2023, pet. ref’d) (mem. op.,

not designated for publication), cert. denied, ___ U.S. ___, 2024 U.S. LEXIS 3871 (Oct.

7, 2024).

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Even assuming Appellant preserved error by using two of her three4 peremptory

strikes on Hough and Woodward, we find no reversible error in the trial court’s rulings.

When reviewing denial of a challenge for cause, we examine the entire voir dire record to

determine if sufficient evidence supports the ruling. Gonzales v. State, 353 S.W.3d 826,

831 (Tex. Crim. App. 2011). Because trial courts are best positioned to evaluate a

venireperson’s demeanor and credibility, we review these decisions for abuse of

discretion. Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992). This standard

is particularly deferential when a venireperson’s answers are vacillating or unclear,

because factors like demeanor and tone of voice do not appear in our record. Id. (citing

King v. State, 29 S.W.3d 556, 568 (Tex. Crim. App. 2000); Banda v. State, 890 S.W.2d

42, 54 (Tex. Crim. App. 1994)).

Venireperson Hough

Hough’s responses about a defendant’s right not to testify evolved during voir dire.

He initially expressed concern, stating “I think [defendants] don’t want to tell the truth if

they don’t take the stand.” However, after the court explained that an accused cannot be

compelled to testify and that the State must meet its burden of proof, Hough shifted his

position. When asked directly how he would vote if the State failed to prove guilt beyond

reasonable doubt, Hough stated, “If they didn’t prove she was guilty, then she would be

not guilty.”

Later questioning, however, revealed some continued equivocation. Discussing a

hypothetical breathalyzer result, Hough remarked that absent contrary evidence, he

4 By statute, Appellant was entitled to three peremptory strikes. See TEX. CODE CRIM. PROC. ANN.
art. 35.15(c).
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would likely trust a properly functioning machine. He added, “To defend your client, you

should have something.”

While a prospective juror showing bias against the law must be excused if

challenged, Rios v. State, No. 07-04-00276-CR, 2005 Tex. App. LEXIS 8631, at *8 (Tex.

App.—Amarillo Oct. 19, 2005, no pet.) (mem. op., not designated for publication), we give

particular deference to trial court rulings on vacillating venire members. Soto-Hernandez

v. State, No. 07-18-00391-CR, 2020 Tex. App. LEXIS 1094, at *9 (Tex. App.—Amarillo

Feb. 6, 2020, no pet.) (mem. op., not designated for publication); Perillo v. State, 758

S.W.2d 567, 577 (Tex. Crim. App. 1988) (en banc) (in the case of a vacillating venire

member, the record supports the trial court’s ruling either way, which means the decision

of the trial court is not wrong). Here, despite some equivocation, Hough demonstrated

an understanding of the law and willingness to apply it. We find no abuse of discretion in

denying Appellant’s challenge to venire member Hough. See Johnson v. State, No. 01-

11-00192-CR, 2012 Tex. App. LEXIS 8325, at *12–13 (Tex. App.—Houston [1st Dist.] Oct.

4, 2012, pet. ref’d) (mem. op., not designated for publication) (deferring to trial court where

vacillating venireperson initially expressed concern about defendant’s refusal to testify

but later agreed to follow the law after court’s explanation).

Venireperson Woodward

Woodward disclosed knowing the prosecutor through their former church, where

she had provided premarital counseling. When asked about this relationship’s impact on

her impartiality, her responses became increasingly definitive. Woodward initially

answered she thought she could remain impartial, which moved to “yes,” she could. She

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also made an unequivocal denial—“No, it would not”—when the trial court asked if her

acquaintance with the prosecutor would impair her ability to serve fairly.

When asked if she could reach a verdict “based solely on the evidence that you

observed and the law that you were given in this case,” Woodward responded, “I believe

so, but I mean, to say that we never recognize our biases, you know, but I believe—I

believe that I could.” The trial court pressed for clarity, asking, “I need a yes or no answer

whether that knowledge of those individuals would impair your ability to be a fair and

impartial juror in this case?” Woodward responded firmly, “No, it would not.”

During another portion, when defense counsel pressed further about whether she

could set aside this relationship, Woodward initially said, “I don’t believe it would be too

tough,” before stating more definitively, “It would not be too tough.”

Mere acquaintance or friendly relations with a party does not automatically

disqualify a juror. Anderson v. State, 633 S.W.2d 851, 853 (Tex. Crim. App. [Panel Op.]

1982). Here, while Woodward had provided counseling services to the prosecutor at their

former church, the connection was past tense—the prosecutor no longer attended that

church. More importantly, Woodward ultimately gave unequivocal assurances of her

impartiality.

We find this situation similar to that presented to our sister court in Tolliver v. State,

No. 14-93-00246-CR, 1995 Tex. App. LEXIS 1558, at *12 (Tex. App.—Houston [14th Dist.]

July 13, 1995, no pet.) (not designated for publication). There, during voir dire, a

prospective juror disclosed casually knowing the prosecutor. The venireperson initially

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hedged, saying he “hoped” he could be fair but might favor the prosecutor’s statements.5

However, when pressed further, he affirmed his ability to set aside the acquaintance and

decide the case on evidence alone.6

Similarly here, while Woodward first equivocated, she ultimately gave clear

assurances of impartiality. Under these circumstances, we find no abuse of discretion in

denying the challenge to Woodward. 1995 Tex. App. LEXIS 1558, at *15. See also

Suniga v. State, No. AP-77,041, 2019 Tex. Crim. App. Unpub. LEXIS 128, at *124 (Tex.

Crim. App. Mar. 6, 2019) (per curiam) (op. on reh’g).

We overrule Appellant’s first four issues on appeal.

5 Tolliver included the following exchange between defense counsel and the venire member:

[DEFENSE COUNSEL]: You’re not sure at this time how much it would affect you, is that
correct?

PROSPECTIVE JUROR: I would hope I would be a fair juror but I also want it to be known
that I have spent some time with Mr. Bennett [the prosecutor].

[DEFENSE COUNSEL]: Let me ask you this, do you think you could judge the State’s case
and any witnesses by the—offered by the defense or the defendant without consideration
of any prior social contact with Mr. Bennett? Put a bag over his head. If you’re unable to
set that aside or if it would influence you one way or the other we just want to know about
it in all fairness.

PROSPECTIVE JUROR: I would hope that I would. The moral and ethical side of me
wants to say yes but I also feel like I may give more credibility to what he would have to
say.

1995 Tex. App. LEXIS 1558, at *12–13 (brackets in original).

6 Again, according to Tolliver:

THE COURT: You’re a lawyer. I just want—question I want to know is can you set aside
the fact that you know the lawyer in the case and know the lawyer on one side and not the
other and simply render a fair and impartial verdict based on the law and evidence?

PROSPECTIVE JUROR: Yes, I can, Your Honor.

Id. at *15.
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Fifth Issue: Confrontation Clause

In her final issue, Appellant challenges testimony from Department of Public Safety

technical supervisor Zachary Kilborn about reliability of the Intoxilyzer 9000, the device

used to analyze Appellant’s breath specimen. Over objection, Kilborn testified about

Appellant’s breath results (0.150 and 0.152 grams per 210 liters) and the machine’s

proper function, though he lacked personal knowledge of its certification and

maintenance. Appellant argues this violated her confrontation rights.

The State needed to prove Appellant (1) operated a motor vehicle (2) in a public

place (3) while intoxicated. TEX. PENAL CODE ANN. § 49.04(a). For Class A misdemeanor

DWI, the State also needed to prove a blood-alcohol concentration of 0.15 or more. Id.

§ 49.04(d). The jury found Appellant guilty only of Class B misdemeanor DWI, implicitly

rejecting the higher concentration element. Because the jury did not rely on the

challenged breath-test evidence, we conclude beyond reasonable doubt that any

confrontation error was harmless. See TEX. R. APP. P. 44.2(a).

Appellant’s fifth issue is overruled.

Conclusion

Having overruled each of Appellant’s issues, we affirm the judgment of the trial

court.

Lawrence M. Doss
Justice

Do not publish.

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