Delacerda v. State (425 S.W.3d 367, 2011)

OPINION

EVELYN V. KEYES, Justice.

A jury convicted appellant, Rogelio De-lacerda, of murder and assessed punishment at thirty-five years’ confinement and a $10,000 fine. In twelve issues, appellant contends that the trial court (1) lacked jurisdiction due to an allegedly invalid order assuming jurisdiction from the juvenile court; (2) erroneously allowed the State to ask improper commitment questions during voir dire; (3) failed to pronounce that a defense exhibit was admitted, which precluded the jury from having all the evidence during deliberations; (4) and (5) erroneously permitted an officer to characterize an interview with appellant, conducted while he was a juvenile, as “not helpful” and erroneously denied appellant’s motion for mistrial relating to the officer’s testimony; (6) erroneously permitted an officer to testify regarding a statement by a witness made while viewing a photospread; (7) erroneously admitted three photographs located in the autopsy report without the proper predicate; (8) erroneously denied appellant’s requested accomplice-witness jury charge instruction; (9) erroneously overruled appellant’s objection to the transferred intent instruction in the charge; (10) erroneously denied appellant’s motion for mistrial after the State mentioned a hearsay statement not introduced in evidence during its closing argument; (11) erroneously permitted an officer, during the punishment phase, to testify regarding the national criminal activity of the Latin Kings gang, without showing any connection to appellant; and (12) erroneously denied appellant’s motion for mistrial after the State described the activities of the Latin Kings and called appellant a “gangster” during its punishment-phase closing argument.

We affirm.

Background

On January 21, 1997, the complainant, seventeen year old Jesus “Robert” Contreras, was walking home from Stephen F. Austin High School in southeast Houston with his twin brother, Albert, and their friends, Gene Cantu, Raul Rodriguez, Chris Aviles, and Julio Lara. As the group walked home on Dumble Street, a newer-model navy blue truck drove past. Albert Contreras testified that he saw three people inside the truck — a male driver, a male passenger, and a female sitting in between — and one person lying in the truck bed, who kept “popping his head up.” Albert stated that he recognized the person in the back of the truck as someone whom he had seen around school two or three times, but he did not know his name. Albert testified that no one in his group said anything to the truck’s occupants as they drove past, but the truck stopped and the passenger looked at the boys after the truck had driven by. Albert did not recognize the passenger as a fellow student.

The truck continued down Dumble and turned right onto Polk Street. As the boys crossed the intersection of Dumble and Polk, Albert saw that the truck had stopped and the person in the back of the truck was speaking to the people in the truck’s cab. Albert testified that the truck made a U-turn and turned back onto Dum-ble, driving in the same direction that the boys were walking, and passed the boys as they reached a tire shop. At the tire shop, the passenger pulled out a gun and shot approximately five or six times at the group. After the passenger stopped shooting and the truck drove away, Albert looked for his brother and found him underneath a piece of plywood, leaning against the wall of the tire shop. Robert had a gunshot wound to his left lower back and died later that night at the hospital. Albert testified that neither he nor his brother was involved in a gang and that neither of them had had any altercations with other students at school in the week before the shooting. The State did not ask Albert on direct examination whether he viewed a police photospread or whether he identified anyone in that photospread.

On cross-examination, Albert testified that he told police that he thought he could identify the person in the back of the truck as someone he had seen at school. Houston Police Department (HPD) Officer P. Guerrero showed Albert a photospread. When asked on cross-examination if he could identify anyone in the photospread, he responded that he did not recognize the person whom he saw in the back of the truck. Albert also stated that when he viewed the photospread he did not recognize the people in the cab of the truck, nor did he recognize the shooter. On redirect, Albert testified that he did not remember identifying the person in the back of the truck when the police showed him the photospread. The next morning, the State recalled Albert and asked him to identify the photospread that he viewed. Albert identified his signature on the second page of the display, which was located next to the position of the second picture. Albert reiterated that he could not recall identifying anyone in the display.

Raul Rodriguez testified that he recognized the passenger as someone with whom he thought he had gone to middle school, and he stated that, although the passenger was Hispanic, he had distinctive “Asian-looking” eyes. Raul acknowledged that, at the time of the shooting, he, Julio, who was shot in the leg during this altercation, and Gene were all members of a neighborhood gang called PSV, located in the Second Ward. To Raul’s knowledge, neither Robert nor Albert Contreras was a member. At trial, Raul identified appellant as the shooter.

Carlos Martinez, who also attended school with Robert and his friends, testified that after school on the day of the shooting he met up with his friends, David Cruz and Tommy Barron, to get a ride home. He testified that, as they were waiting for their ride, David showed them a gun that he had in his waistband. Carlos stated that David’s cousin picked them up in a truck and that he was accompanied by a male passenger and a female sitting in between; Carlos did not know any of the people in the truck. Carlos testified that he, David, and Tommy all jumped in the back of the truck and lay down. At one point, Carlos heard someone in the front of the truck ask David “Is that them?” and he heard David reply, “I think so.” Carlos did not look to see to whom they were referring. While they were in the truck, Carlos saw David hand a gun to the passenger. Carlos testified that he was seared and did not know what was about to happen. Carlos then testified that he heard the passenger ask David “if he wanted [the passenger] to shoot at him,” and after David responded, “I don’t know,” Carlos heard gunshots. Carlos stated that no one in the bed of the truck fired a gun.

After the shooting, the driver dropped the boys off at a park, and the passenger handed the gun to David. Carlos stated he had no idea that a shooting was going to happen and that he “caught a ride with the wrong people that day.” Carlos testified that when he initially spoke to the police he told them that David was the shooter because David had told Carlos and Tommy that he “didn’t want nobody to take the blame for him.” However, later on the same day that he gave this statement, Carlos told police that the passenger was the shooter.

On cross-examination, Carlos stated that he knew David had been having trouble with PSV members and that David had a gun with him on the day of the shooting. He also stated that, after they were already in the back of the truck, he heard David say, “Now you’re going to learn about drive-bys.” Carlos testified that he knew what this meant but that it was too late for him to get out of the truck. Carlos also testified that, the Friday before the shooting, David had told Tommy that he and his friend had been beaten up by PSV members and that David was going to “pop a cap at,” or shoot, those involved. Carlos further testified that after he had given his first statement to police, in which he named David as the shooter, he asked the officer driving him home what would happen if he had lied in his statement and the officer replied that he would be in “big trouble.” At this point, Carlos decided, on his own, to “tell the truth” because he did not want to get into trouble. When Carlos spoke to the officers a second time, he named appellant as the shooter.

David Cruz testified that on the Friday before the shooting he and one of his friends were walking home when they were “jumped” by approximately twenty to thirty PSV members. After this incident, David called his cousin, Jose Carreon, told him that he was having problems with people from school, and asked Jose if he could take him home from school the next week. On Saturday, Jose and appellant came to David’s house to talk about the situation and to offer advice and support. David testified that appellant gave him a gun “for protection.” David brought the gun to school on Tuesday, January 21, and showed it to his friend Edgar, who had been involved in the incident on the previous Friday. David could not recall if he showed the gun to anyone else. He stated that right before school let out on Tuesday he had another altercation and was chased by a group of unnamed boys.

David testified that Jose, accompanied by his girlfriend, Emily Hugo, who owned the truck, and appellant, picked him up from school. When they arrived, appellant asked David for the gun, and, after he handed it over, David climbed in the back of the truck with Tommy and Carlos. David stated that the three boys were lying down in the back because they did not want other students to see where they lived, and he gave directions to Jose while lying down. After Jose turned onto Polk, David informed him that he was going the wrong way to his house, and Jose turned back onto Dumble. After Jose turned, David testified that he heard a group of PSV members' throwing things at the truck and that he heard appellant talking to them. Appellant then asked David “if that was them,” and, after David responded that it was not, appellant started shooting “on his own.” David testified that he had only brought the gun to school to scare the people who were harassing him and that he did not want the situation to escalate to the point of a shooting.

David stated that, after the shooting, Jose started arguing with appellant and Emily was angry and crying. Jose then drove to a park and dropped off David, Tommy, and Carlos. Appellant got out as well, told David and the boys to “keep [their] mouths shut,” and handed David the gun. David testified that all three boys were scared and that he told the others to say that he was the shooter “so someone else won’t go down for [David’s] problems.” David stated that he kept the gun at his house for approximately three days before appellant came and picked it up “so [they] wouldn’t get caught.” He further testified that he gave a statement to the police on January 29, 1997, and he told them that appellant was the shooter.

On cross-examination, David testified that he did not remember telling Carlos and Tommy before they got in the truck that “today, they [were] going to learn about drive-bys.” He further stated that he had seen appellant and Jose together on several occasions and that appellant had been to his house “a lot of times.”

Emily Hugo testified that, on January 21, Jose drove her back to' their school, Cy-Falls High School, so she could attend after-school tutorials. When they arrived at school, she went inside to call her father and to check a voicemail that Jose had received from David on his pager. As Emily was walking back to her truck to tell Jose that David had requested a ride home, appellant asked her if she could give him a ride home. Emily testified that, when they arrived at David’s school, appellant got out of the truck and then sat back down in the passenger seat, and David and his friends climbed into the back of the truck and remained there. Emily did not see David hand appellant a gun, and she did not remember hearing any conversations in the truck between David and appellant.

Emily testified that, at one point, a group of kids walking on Dumble started yelling at the truck and appellant started yelling back. Immediately afterwards, Emily saw appellant pull a gun from his waistband and start shooting at the group of kids. Emily testified that, after the shooting, she started crying and was in shock. After Jose dropped David and his friends off, Jose, Emily, and appellant drove back across Houston to pick up Emily’s younger sister from school. Emily stated that she did not kick appellant out of the truck at that point because she was scared and “didn’t know what to do.” When they dropped appellant off at his house, he told Emily and Jose not to tell anyone what had happened.

Emily and Jose watched the news together on the night of the shooting and learned that one of the boys had died. Emily testified that she was “scared and sickened,” but she did not go to the police at this point because she was waiting for her mother to return to town so she could talk to her about the shooting. Emily spoke to her parents five days after the shooting, and, after her parents contacted a lawyer, she met with the police to give her statement. She testified that she did not talk to appellant again after the shooting, but she listened in on a phone conversation that he had with Jose, in which appellant asked which one of them had called the police to turn him in.

Shortly after the shooting, Jose’s brother washed Emily’s truck, although both Jose and Emily testified that he did this of his own volition and not at the request of either of them and that he had washed the truck on previous occasions. Jose’s brother found one or two shell casings in the truck and threw them away. Emily testified that she did not remember having a conversation with appellant’s then-girlfriend in which Emily told her to say that appellant was with her on the afternoon of the shooting.

On cross-examination, Emily acknowledged that her attorney negotiated an immunity deal for her with the district attorney’s office, but she stated that she did not know any details about that deal. Emily also testified that HPD homicide officers picked up her truck from her house on Friday, January 24, 1997, two days before Emily spoke to her parents about the shooting. Emily did not recall whether the back license plate from her truck was missing on the day of the shooting, but she was certain that no one took it off after she, Jose, and appellant left their school and before they arrived at David’s.

HPD Homicide Investigator H.A. Chavez testified that officers received an anonymous Crime Stoppers tip that provided appellant’s name. Officers then went to appellant’s house, discovered that appellant was only sixteen years old, and asked his mother for permission to speak with him. After she agreed, officers escorted appellant to the Homicide Division office. At trial, the State asked Investigator Chavez whether appellant was “helpful” in his interview. Defense counsel objected to discussing the contents of the interview unless the State could demonstrate that the officers followed the procedural requirements in the Family Code for taking the statements of juveniles and objected to the implication that appellant was not helpful because he was dishonest. The trial court overruled the objection, and the State again asked Investigator Chavez whether he would say that appellant was helpful in the officers’ investigation. Defense counsel objected “for the same reason we stated on the record.” The trial court again overruled the objection, and Investigator Chavez testified that appellant was not helpful. The State then asked whether Investigator Chavez had any indication that appellant “had any knowledge of this incident.” Investigator Chavez responded that “[he] felt that [appellant] possibly knew more than he was telling, but — ,” and defense counsel objected on speculation grounds. The trial court sustained the objection, instructed the jury to disregard Chavez’s answer, and denied appellant’s motion for mistrial.

Appellant testified on his own behalf during the guilt-innocence phase. He acknowledged that he had been a member of the Latin Kings gang from 1994 to 1996, before the shooting occurred. He testified that he had never been to David Cruz’s house, that he had only seen David once or twice before the shooting, that he did not give David a gun, that he never had a gun on the day of the shooting, and that he did not go to David’s house after the shooting to retrieve the gun. Appellant stated that when he, Jose, and Emily arrived at David’s school David showed them a gun and that David sat in the passenger seat while appellant climbed into the back of the truck with David’s two friends. Appellant testified that he heard David say, “Duck, because y’all are going to see what a drive by is,” and, when the shooting started, he was lying in the back of the truck, covering his head. Appellant stated that, after Jose dropped him off at his house, Jose told him that he had better not say anything, “or else.” Appellant denied making threats to Jose and David. Appellant also testified that, after the shooting, he was “scared for his life,” and he left Houston for Mexico and stayed there for five or six years.

At the punishment phase, the State called Harris County Sheriffs Department Deputy M. Squyres as an expert on criminal street gangs. Before Deputy Squyres testified, defense counsel objected to any testimony regarding the national criminal activities of the Latin Kings unless the State could specifically connect such activity to appellant. The trial court overruled the objection, agreeing with the State that the nature of the Latin Kings and the kinds of activities for which they are known was “highly relevant” to appellant’s character. Deputy Squyres testified that the Latin Kings are known for engaging in criminal activity, specifically narcotics distribution, “random assaultive behavior against other gang members,” and murder. Deputy Squyres also testified that he examined and photographed appellant’s tattoos, and two of them shared characteristics with common Latin Kings gang symbols. Deputy Squyres noted that one of those tattoos was dated March 1, 2002.

The jury convicted appellant of murder and assessed punishment at thirty-five years’ confinement and a $10,000 fine.

Jurisdiction

In his first issue, appellant, who was sixteen at the time of the shooting, contends that the trial court lacked jurisdiction to hear this case because the order purportedly assuming jurisdiction from the juvenile court was defective and invalid, and, therefore, jurisdiction remained in the juvenile court. Specifically, appellant contends that the order does not meet Code of Criminal Procedure article 42.01’s requirements for judgments because (1) the order is not dated, (2) the order reflects only the date on which the juvenile court waived jurisdiction, (3) the order is not file-stamped by the district clerk’s office, and (4) the district court judge’s signature is illegible and there is no printed name of the judge on the order.

The juvenile court may waive its exclusive original jurisdiction and transfer a child to the district court for criminal proceedings if (1) the child is alleged to have committed a felony; (2) the child was fourteen years of age or older at the time of the alleged offense if the offense is a felony of the first degree; and (3) after a full investigation and a hearing, “the juvenile court determines that there is probable cause to believe that the child before the court committed the offense alleged and that because of the seriousness of the offense alleged or the background of the child the welfare of the community requires criminal proceedings.” Tex. Fam. Code Ann. § 54.02(a) (Vernon Supp. 2010); see id. § 54.02(i) (“A waiver under this section is a waiver of jurisdiction over the child and the criminal court may not remand the child to the jurisdiction of the juvenile court.”); see also Ex parte Waggoner, 61 S.W.3d 429, 431 (Tex.Crim.App.2001) (“In the absence of a transfer [to the district court], the district court was, at the time of the offense, without jurisdiction, and any resulting conviction is void.”).

A. Waiver Under Juvenile Code article 4.18(a)

The State contends that appellant has waived his contention that jurisdiction remained in the juvenile court because Code of Criminal Procedure article 4.18(a) provides that objections to a district court’s assumption of jurisdiction over a juvenile must be made before jury selection and appellant did not so object. Under these facts, we disagree.

Article 4.18(a) provides that:

A claim that a district court or criminal district court does not have jurisdiction over a person because jurisdiction is exclusively in the juvenile court and that the juvenile court could not waive jurisdiction under Section 8.07(a), Penal Code, or did not waive jurisdiction under Section 8.07(b), Penal Code, must be made by written motion in bar of prosecution filed with the court in which criminal charges against the person are filed.

Tex.Code Crim. ProC. Ann. art. 4.18(a) (Vernon 2005). If the defendant elects to have a jury trial on either guilt or punishment, the defendant must file and present his motion to the .presiding judge of the court before jury selection begins. Id. art. 4.18(b)(2). If the defendant does not file his motion within the prescribed time limits, the defendant “may not contest the jurisdiction of the court on the ground that the juvenile court has exclusive jurisdiction.” Id. art. 4.18(d)(1).

Here, appellant is not arguing that the district court lacks jurisdiction because jurisdiction was exclusively in the juvenile court and the juvenile court either could not waive jurisdiction under Penal Code section 8.07(a) or did not waive jurisdiction under Penal Code section 8.07(b). See id. art. 4.18(a). Instead, appellant contends that the district court lacks jurisdiction because its order assuming jurisdiction after transfer from the juvenile court was defective and invalid, and therefore void. This factual scenario is not covered by the plain language of article 4.18(a). We therefore conclude that the State’s interpretation of article 4.18(a), which would require the defendant to make a written motion before jury, selection begins in order, to preserve any claim that the district court lacks jurisdiction, is overly broad and not supported by the language of the statute. See Alberty v. State, 250 S.W.3d 115, 118 (Tex.Crim.App.2008) (holding that article 4.18 applies only when jurisdiction is exclusively in juvenile court; thus, when evidence supports jurisdiction in both juvenile and district courts, article 4.18 does not apply and defendant need not make a written motion to preserve the complaint). We hold that when a defendant challenges the district court’s jurisdiction due to an allegedly defective order assuming jurisdiction the defendant need not object via written motion before jury selection begins to preserve his complaint for appellate review. We further hold that appellant did not waive his contention that jurisdiction remained in the juvenile court by failing to object to the transfer to the district court before jury selection.

B. Lack of District Court Jurisdiction Due to Invalid Transfer Order

Neither the Family Code nor the Code of Criminal Procedure specifies the required contents of the district court’s order assuming jurisdiction, and neither code specifies that, if that order does not meet certain requirements, the trial court loses jurisdiction. See Moss v. State, 13 S.W.3d 877, 885-86 (Tex.App.-Fort Worth 2000, pet. ref'd) (holding no statutory requirement exists that transfer order be filed with district court and that, if not filed, district court deprived of jurisdiction); see also Ellis v. State, 543 S.W.2d 135, 137 (Tex.Crim.App.1976) (“Regardless of whether the order of the juvenile court was actually on file with the papers in the case, the record reflects that the juvenile court had waived jurisdiction over appellant and had transferred it to the district court in which all subsequent criminal proceedings were had, and that the district court had such order in its possession and acted on the waiver and transfer and assumed jurisdiction.... ”).

Here, it is undisputed that the juvenile court signed an order waiving its exclusive jurisdiction and transferring jurisdiction “to the Criminal District Court of Harris County.” Appellant does not contend that this order waiving jurisdiction is invalid or that the juvenile court improperly waived and transferred its jurisdiction. The order assuming jurisdiction in the district court is included within the clerk’s record, indicating that it was duly filed in the district clerk’s office with the other papers in the case. The caption of the order states “In the 174 District Court of Harris County, Texas,” the order is signed, and the order includes a statement that:

IT IS ACCORDINGLY CONSIDERED, ORDERED AND ADJUDGED THAT jurisdiction of this court of said ROGELIO DELACERDA for criminal proceedings be and the same are hereby assumed by this court; that this cause be filed and docketed and this order entered in the minutes of this court, and that a certified copy of same be certified to said Judicial District Court, sitting as a Juvenile Court, for observance.

However, the order is not dated, nor does the printed name of the presiding judge appear on the order.

We conclude that, despite the lack of a date and printed name of the judge, this order unequivocally provides for the assumption of jurisdiction by the 174th District Court. See Speer v. State, 890 S.W.2d 87, 93 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd) (holding that, when discrepancy existed between district court number within order assuming jurisdiction, discrepancy was “no more than a typographical error or editing oversight,” and district court named in caption properly assumed jurisdiction).

We hold that the district court properly assumed and exercised jurisdiction over appellant in this case.

We overrule appellant’s first issue.

Commitment Question

In his second issue, appellant contends that the trial court allowed the State to ask an improper commitment question during voir dire when it sought to discover which veniremembers could not convict appellant if the State failed to produce “physical evidence” but otherwise proved the elements of the offense beyond a reasonable doubt.

The trial court has broad discretion over the process of selecting a jury. Barajas v. State, 98 S.W.3d 36, 38 (Tex.Crim.App.2002); Braxton v. State, 226 S.W.3d 602, 604 (Tex.App.-Houston [1st Dist.] 2007, pet. dism’d). We therefore review the trial court’s ruling on an allegedly improper commitment question during voir dire for an abuse of discretion. Atkins v. State, 951 S.W.2d 787, 790 (Tex.Crim.App.1997); Braxton, 226 S.W.3d at 604.

Improper commitment questions are prohibited to “ensure that the jury will listen to the evidence with an open mind— a mind that is impartial and without bias or prejudice — and render a verdict based upon that evidence.” Sanchez v. State, 165 S.W.3d 707, 712 (Tex.Crim.App.2005). Commitment questions “require a venireman to promise that he will base his verdict or course of action on some specific set of facts before he has heard any evidence, much less all of the evidence in its proper context.” Id.; Standefer v. State, 59 S.W.3d 177, 179 (Tex.Crim.App.2001) (holding that commitment questions “are those that commit a prospective juror to resolve, or refrain from resolving, an issue a certain way after learning a particular fact”). Not all commitment questions, however, are improper. Standefer, 59 S.W.3d at 181.

The Court of Criminal Appeals has articulated a three-part test for determining whether a voir dire question is an improper commitment question. Id. at 179-84; Braxton, 226 S.W.3d at 604; Harris v. State, 122 S.W.3d 871, 879 (Tex.App.-Fort Worth 2003, pet. ref'd). First, the trial court must determine whether the particular question is a commitment question. Standefer, 59 S.W.3d at 179. A question is a commitment question if “one or more of the possible answers is that the prospective juror would resolve or refrain from resolving an issue in the case on the basis of one or more facts contained in the question.” Id. at 180. Second, if the question is a commitment question, the trial court must then determine whether it is a proper commitment question. Id. at 181 (“When the law requires a certain type of commitment from jurors, the attorneys may ask the prospective jurors whether they can follow the law in that regard.”); Braxton, 226 S.W.3d at 604. A commitment question is proper if one of the possible answers to the question gives rise to a valid challenge for cause. Standefer, 59 S.W.3d at 182; Braxton, 226 S.W.3d at 604. If the question does not, then it is not a proper commitment question and it should not be allowed by the trial court. Standefer, 59 S.W.3d at 182. Third, if the question does give rise to a valid challenge for cause, then the court must determine whether the question “contain[s] only those facts necessary to test whether a prospective juror is challengeable for cause.” Id. (emphasis in original). “Additional facts supplied beyond what is necessary to sustain a challenge for cause render improper what otherwise would have been a proper question.” Braxton, 226 S.W.3d at 604.

A. Was the State’s question a commitment question?

Appellant contends that the trial court improperly allowed the State' to ask the veniremembers variations of the following question:.

I bring you other types of evidence. I bring you direct evidence. I bring you maybe circumstantial evidence. I bring you any other type of evidence you can think of. And I prove my case to you beyond a reasonable doubt through that evidence, but I don’t bring you any physical evidence. Can you convict?

Appellant and the State agree that this question was a commitment question. This question asked veniremembers whether they could convict based upon a particular factual scenario — no physical evidence. See Standefer, 59 S.W.3d at 179 (holding that commitment questions commit prospective jurors to resolve issue a certain way after learning particular facts). We agree with the parties and conclude that this question was a commitment question. Id.; see also Braxton, 226 S.W.3d at 605 (holding that question asking whether prospective jurors would be more likely to consider self-defense just because defendant was a woman was commitment question). We therefore determine whether the commitment question was proper.

B. Did the question give rise to a valid challenge for cause?

A veniremember may be challenged for cause if he possesses a bias against a phase of the law upon which the State or defendant is entitled to rely. Mason v. State, 116 S.W.3d 248, 255 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd) (citing Barajas, 93 S.W.3d at 39); see Tex. Code Crim. PROC. Ann. art. 35.16(b)(3) (Vernon 2006). The State may properly challenge a prospective juror for cause when the juror would hold the State to a burden higher than beyond a reasonable doubt. Mason, 116 S.W.3d at 255 (citing Coleman v. State, 881 S.W.2d 344, 360 (Tex.Crim.App.1994)); see also Blackwell v. State, 193 S.W.3d 1, 20 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd) (“[A] juror who would require more evidence than necessary to prove a case beyond a reasonable doubt would be subject to a challenge for cause.”); Harris, 122 S.W.3d at 880 (“Although the State may not bind a prospective juror to a specific set of facts, the State is permitted to determine whether a prospective juror will require evidence the law does not require to convict a defendant.”). Sufficient evidence can support a murder conviction even in the absence of physical evidence such as DNA evidence, fingerprinting evidence, and the murder weapon; thus, such evidence is' not required to obtain a conviction. See Harmon v. State, 167 S.W.3d 610, 614 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd) (“A rational jury could have found appellant guilty of aggravated, robbery without DNA evidence, fingerprint evidence, or evidence of the gun or cash Newby gave to appellant.”).

Here, the challenged question sought to determine whether prospective jurors could convict appellant in the absence of “physical evidence” if the State otherwise proved the elements of the offense beyond a reasonable doubt. Because the State is not required to produce such evidence to prove its case beyond a reasonable doubt, a negative answer to this question gives rise to a valid challenge for cause because it reveals a bias against a “phase of the law upon which the State is entitled to rely for conviction or punishment.” See Tex.Code Crim. Proc. Ann. art. 35.16(b)(3); Harris, 122 S.W.3d at 880 (holding, in sexual assault case, that question asking whether jurors could convict in absence of scientific or medical evidence, was proper commitment question because State could obtain conviction in absence of such evidence). In this situation, a juror who requires physical evidence holds the State to a higher burden than beyond a reasonable doubt, and, therefore, the State may properly challenge such a juror for cause. See Mason, 116 S.W.3d at 255-56 (holding question that “identified veniremen who would not convict [of aggravated sexual assault and indecency with a child] in the absence of DNA or medical evidence— even though Texas law does not require it and the State might otherwise prove its case beyond a reasonable doubt” was proper commitment question); Harris, 122 S.W.3d at 880 (“[T]he State is permitted to determine whether a prospective juror will require evidence the law does not require to convict a defendant”).

We therefore conclude that, because a negative answer to the State’s question would lead to a valid challenge for cause, we must proceed to the third step of the inquiry — whether the question included only the facts necessary to test whether a prospective juror was challengeable for cause — to determine if this was a proper commitment question.

C. Did the question include only necessary facts?

A commitment question may be improper if it “includes facts in addition to those necessary to establish a challenge for cause,” and, therefore, a commitment question “must contain only those facts necessary to test whether a prospective juror is challengeable for cause.” Standefer, 59 S.W.3d at 182 (emphasis in original); Braxton, 226 S.W.3d at 606 (“[T]he question should not contain more case-specific facts than needed to give rise to a valid challenge for cause.”). In Atkins, for example, the Court of Criminal Appeals held that the following commitment question was improper: “If the evidence, in a hypothetical case, showed that a person was arrested and they had a crack pipe in their pocket, and they had a residue amount in it, and it could be measured, and it could be seen, is there anyone who could not convict a person based on that— [?[?] ” Atkins, 951 S.W.2d at 789. The court reasoned that this question was improper because it “serve[d] no purpose other than to commit the jury to specific set of facts prior to the presentation of any evidence at trial.” Id.

Here, the questions asked by the State did not include facts that were unnecessary to determining a valid challenge for cause. Braxton, 226 S.W.3d at 606. The questions “did not attempt to commit the prospective jurors to a specific set of facts prior to the presentation of evidence at trial.” Id. Rather, the only fact that the questions included was the absence of physical evidence, such as DNA or fingerprinting evidence, and this fact was. necessary to test whether a prospective juror possessed a bias against a phase of the law upon which the State was entitled to rely, and was, therefore, challengeable for cause. See Standefer, 59 S.W.3d at 182; Harris, 122 S.W.3d at 881 (“The questions were not fact intensive, but rather only included those facts necessary to determine whether a prospective juror was chal-lengeable for cause”). We therefore hold that, because the questions asked by the State included only the facts necessary to discover a valid challenge for cause, the questions were proper commitment questions, and the trial court did not err in allowing these questions.

We overrule appellant’s second issue.

Failure to Pronounce Exhibit Admitted

In his third issue, appellant contends that the trial court erred in failing to pronounce that Defense Exhibit 2, Jose Car-reon’s written police statement, was admitted after it overruled the State’s hearsay objection to the exhibit. Appellant argues that this failure precluded the jury from considering this exhibit during its deliberations.

During cross-examination of Jose, defense counsel attempted to impeach Jose by using his written police statement. After the State objected on the ground that counsel was improperly reading from a document not admitted into evidence, defense counsel offered the statement into evidence as Defense Exhibit 2. The State objected to the admission of this document on hearsay grounds. Defense counsel, the prosecutor, and the trial court then had the following exchange:

[Defense]: Is the State still objecting to the introduction of the statement?

[State]: Yes, of the statement.

[Defense]: I’m still offering it. I’m offering it into evidence. What’s the basis of the objection?

[State]: Hearsay, certainly.

The Court: Denied.

Appellant’s interpretation of this exchange is that the trial court overruled the State’s objection and admitted Exhibit 2, but failed to pronounce that it had admitted the exhibit. The State contends that the more logical interpretation is that trial court sustained its objection and “denied the admission of the statement into evidence.”

Based on a review of other instances in the record in which the trial court either admitted evidence over a party’s objection or excluded evidence, we agree with the State. The trial court admitted exhibits over the objection of defense counsel on five separate occasions throughout both phases of the trial. For example, when the State offered a 9mm handgun into evidence for demonstrative purposes, the following exchange occurred:

[State]: Your Honor, at this time State would offer State’s 62 in evidence for demonstrative purposes only after tendering to opposing counsel.

[Defense]: Objection. Not relevant.

The Court: Overruled. Entered over objection for demonstrative purposes.

Although this was the only occasion that the trial court explicitly said “overruled,” on each of the other four occasions, the court said “admitted over objection.” In contrast, on two occasions, defense counsel attempted to introduce the written statement of Edgar Rangel into evidence and the following occurred:

[Defense]: For the record, now that the jury is retired, I want to reoffer Defense Exhibit Number 3, the statement of Edgar Rangel, which rebuts the witness’ testimony about this witness telling him that David was the shooter.

[State]: Judge, I renew the previous objections. You heard the witness’ testimony. I’m sorry. Previous response. You heard the witness’ testimony.

The Court: Same ruling. Denied.

On both of these occasions, the trial court excluded the proffered evidence and stated “denied,” which is what the court stated when defense counsel offered Jose’s written statement.

When we examine the record and contrast the trial court’s statements when it admitted exhibits over defense counsel’s objection with its statements when it excluded exhibits, we conclude that the trial court did not admit Defense Exhibit 2 and “inadvertently” fail to state that the exhibit was admitted. We therefore hold that the trial court did not err in failing to pronounce the exhibit admitted. See Word v. State, 206 S.W.3d 646, 651-52 (Tex.Crim.App.2006) (“It is usually the appealing party’s burden to present a record showing properly preserved, reversible error.”); Guajardo v. State, 109 S.W.3d 456, 462 n. 17 (Tex.Crim.App.2003) (“It is, however, the appealing party’s burden to ensure that the record on appeal is sufficient to resolve the issue he presents.”); Ortiz v. State, 144 S.W.3d 225, 230 (Tex.App.Houston [14th Dist.] 2004, pet. ref'd) (“[The appellant] is required to develop the record to show the nature and source of error and, in some cases, its prejudice to him.”).

We overrule appellant’s third issue.

Characterization of Police Interview

Appellant contends, in his fourth issue, that the trial court erroneously allowed HPD Investigator H.A. Chavez to discuss his interview of appellant and to characterize that interview as “not helpful” because appellant was under the jurisdiction of the juvenile justice system at the time. Appellant argues that his statement was a product of custodial interrogation and, thus, because the police did not follow the procedures in the Family Code that govern the admissibility of statements made by minors, the trial court should not have allowed Investigator Chavez either to discuss his conversation with appellant or to testify regarding his impressions following the conversation. In his fifth issue, appellant contends that the trial court erroneously denied his motion for mistrial made after Investigator Chavez testified that, after interviewing appellant, he “felt that [appellant] possibly knew more [about the shooting] than he was telling.”

A. Statement that Appellant’s Interview was “Not Helpful”

The State did not offer, and the trial court did not admit into evidence, any portion of appellant’s oral statement to Investigator Chavez. There is no indication that, during his conversation with Chavez, appellant confessed to his involvement in the shooting. Chavez did not testify that appellant’s statements were “not helpful” because they were inculpato-ry and incriminating; rather, he testified that appellant was not “helpful in [Chavez’s] investigation” of the shooting.

Former Family Code section 51.09, applicable at the time of appellant’s interview, set forth certain procedural requirements that must be met for a child’s statement to be admissible in evidence. Act of May 24, 1991, 72d Leg., R.S., ch. 593, 1991 Tex. Gen. Laws 2129, 2129-30 (amended 1997) (current version at Tex. Fam.Code Ann. § 51.095(a) (Vernon 2008)); see also Tex. Fam.Code Ann. §§ 52.02-.026 (Vernon 2008) (requiring, among other things, that person taking child into custody must “without unnecessary delay” take child to designated juvenile processing office). For example, the statute provided that, when the child is in a detention facility or in the custody of an officer, the statement must be in writing and must reflect that the child received his Miranda warnings from a magistrate before making the statement. Act of May 24, 1991, 72d Leg., R.S., ch. 593, 1991 Tex. Gen. Laws 2130 (amended 1997). Section 51.09(d)(2) expressly provided that it “does not preclude the admission of a statement made by the child if the statement does not stem from custodial interrogation.” Act of May 24, 1991, 72d Leg., R.S., ch. 593, 1991 Tex. Gen. Laws 2129, 2129-30 (amended 1997) (current version at Tex. Fam.Code Ann. § 51.095(b)(2) (Vernon 2008)); see also Laird v. State, 933 S.W.2d 707, 713 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd) (“[S]ection 51.09(b)(2) of the Family Code [does] not apply to this case because appellant’s confession was not made as a result of custodial interrogation.... In such a situation, section 51.09(d)(2) of the Family Code applies. This section allows an oral statement to be admitted if it is not in response to custodial interrogation.”). As a threshold issue, we must first determine whether appellant was in custody when he spoke with Investigator Chavez.

Custodial interrogation is questioning that is initiated by law enforcement after a person has been taken into custody or otherwise deprived of his freedom in any significant way. See Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 1528, 128 L.Ed.2d 293 (1994); In re D.J.C., 312 S.W.3d 704, 712 (Tex.App.-Houston [1st Dist.] 2009, no pet.) (addressing whether juvenile was in custody for purpose of determining admissibility of confession in juvenile delinquency proceeding). “A custodial interrogation occurs when a defendant is in custody and is exposed ‘to any words or actions on the part of the police ... that [the police] should know are reasonably likely to elicit an incriminating response.’ ” Roquemore v. State, 60 S.W.3d 862, 868 (Tex.Crim.App.2001) (quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980)). A child is in custody if, under the objective circumstances, a reasonable child of the same age would believe that his freedom of movement was significantly restricted. In re D.J.C., 312 S.W.3d at 712 (citing In re U.G., 128 S.W.3d 797, 799 (Tex.App.-Corpus Christi 2004, pet. denied) and Jeffley v. State, 38 S.W.3d 847, 855 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd)).

In determining whether an individual is in custody, we first examine all of the circumstances surrounding the interrogation to determine if there was a formal arrest or “restraint of freedom of movement to the degree associated with a formal arrest.” Stansbury, 511 U.S. at 322, 114 S.Ct. at 1528-29; In re D.J.C., 312 S.W.3d at 712. This determination focuses on the objective circumstances of the interrogation and not on the subjective views of either the interrogating officers or the person being questioned. Stansbury, 511 U.S. at 323, 114 S.Ct. at 1529; In re D.J.C., 312 S.W.3d at 712. We next consider whether, in light of the particular circumstances, a reasonable person would have felt that he was at liberty to terminate the interrogation and leave. Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 465, 133 L.Ed.2d 383 (1995); In re D.J.C., 312 S.W.3d at 712. Factors relevant to a custody determination include: (1) probable cause to arrest; (2) focus of the investigation; (3) subjective intent of the police; and (4) subjective belief of the defendant. Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.Crim.App.1996); In re D.J.C., 312 S.W.3d at 712. Because the custody determination is based entirely on objective circumstances, whether the law enforcement officials had the subjective intent to arrest is irrelevant unless that intent is somehow communicated to the suspect. Stansbury, 511 U.S. at 323, 114 S.Ct. at 1529; Dowthitt, 931 S.W.2d at 254; In re D.J.C., 312 S.W.3d at 713.

The following situations generally constitute custody: (1) when the suspect is physically deprived of his freedom of action in any way; (2) when a law enforcement officer tells the suspect that he cannot leave; (3) when law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted; or (4) when there is probable cause to arrest and law enforcement officers do not tell the suspect that he is free to leave. Dowthitt, 931 S.W.2d at 255; In re D.J.C., 312 S.W.3d at 713.

Being the focus of the investigation does not amount to being in custody. Meek v. State, 790 S.W.2d 618, 621 (Tex.Crim.App.1990) (citing Beckwith v. United States, 425 U.S. 841, 347, 96 S.Ct. 1612, 1616, 48 L.Ed.2d 1 (1976)); In re D.J.C., 312 S.W.3d at 713. Similarly, stationhouse questioning does not, in and of itself, constitute custody. Dowthitt, 931 S.W.2d at 255; In re D.J.C., 312 S.W.3d at 713. Ordinarily, when a person voluntarily accompanies a law enforcement officer to a certain location, even' though the person knows or should know that the officer suspects that he may have committed or may be implicated in the commission of a crime, the person is not restrained or “in custody.” Garcia v. State, 237 S.W.3d 833, 836 (Tex.App.-Amarillo 2007, no pet.) (citing Miller v. State, 196 S.W.3d 256, 264 (Tex.App.-Fort Worth 2006, pet. ref'd)). “When the circumstances show that the individual acts upon the invitation or request of the police and there are no threats, express or implied, that he will be forcibly taken, then that person is not in custody at that time.” In re D.J.C., 312 S.W.3d at 713; Garcia, 237 S.W.3d at 836 (citing Shiflet v. State, 732 S.W.2d 622, 628 (Tex.Crim.App.1985)).

The only evidence in the record regarding the circumstances of appellant’s interview with Investigator Chavez is Chavez’s testimony. According to Investigator Chavez, HPD Homicide Division received an anonymous Crime Stoppers tip that provided appellant’s name. Several officers, including Chavez, went to appellant’s house on January 24, 1997, to ask him to come to the station and give a statement. The officers discovered that appellant was only sixteen, and so they informed his mother that “[appellant’s] name had come up on an investigation and advised her that [the officers] needed to speak with [appellant]-about this case.” Appellant’s mother gave- the officers permission to speak with him. The officers transported appellant to the Homicide Division. Investigator Chavez testified that they did not read appellant any Miranda warnings because he “wasn’t in custody.” When asked whether he was planning to arrest appellant on that day, Investigator Chavez responded that “[a]t- that particular time, his name just came up and we wanted to see what he knew about the case.” Investigator Chavez stated that he did not make a written statement or a recording of the interview because, when the witness does not have any “useful” information, normal practice is to “document [the interview] as an oral statement.” After appellant gave his oral statement, Investigator Chavez had a patrol officer escort appellant to his father’s business. Investigator Chavez did not testify about the contents of appellant’s oral interview.

Based on this record, in which there is no testimony about the circumstances of the interview itself, there is no indication that appellant’s freedom of movement was restrained or that he felt as though he could not terminate the interview and leave at any time. See In re D.J.C., 312 S.W.3d at 714 (holding that “there was restraint of freedom of movement to the degree associated with formal arrest” when magistrate read defendant his Miranda warnings, defendant’s grandmother was excluded from interview despite her request, and defendant was alone in locked interrogation room with armed officer). Investigator Chavez testified that, at the time of the interview, appellant was not a suspect, but that his name “came up” in an anonymous tip, and therefore detectives wanted to speak with appellant and see if he knew anything about the incident. Investigator Chavez also testified that, with the permission of his mother, appellant voluntarily went with the officers to the Homicide Division office. Merely being questioned at the station-house, by itself, does not constitute custody. Dowthitt, 931 S.W.2d at 255; In re D.J.C., 312 S.W.3d at 713. We conclude that appellant’s oral statement to Investigator Chavez did not stem from custodial interrogation, and, therefore, was admissible in evidence. See Act of May 24, 1991, 72d Leg., R.S., ch. 593, 1991 Tex. Gen. Laws 2129, 2129-30 (amended 1997); see also Laird, 933 S.W.2d at 713 (holding section 51.09(b)(2) inapplicable when confession was not result of custodial interrogation). Because’ appellant’s oral statement was admissible, we hold that the trial court did not abuse its discretion in allowing Investigator Chavez to testify that appellant’s statement was not helpful to his investigation.

B. Statement that Appellant “Possibly Knew More than He Was Telling”

In his fifth issue, appellant contends that the trial court erroneously denied his motion for mistrial made after Investigator Chavez testified, in response to the State’s question of whether he had an indication that appellant had any knowledge of the shooting, that, after his interview with appellant, he felt “that [appellant] possibly knew more than he was telling.” The trial court sustained appellant’s objection on speculation grounds and instructed the jury to disregard Chavez’s statement.

When the trial court instructs the jury to disregard a question, but denies the appellant’s motion for mistrial, we must determine whether the improper conduct is “so - harmful that the case must be redone.” Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App.2004). In determining harm, we consider three factors: (1) severity of the misconduct; (2) measures adopted to cure the misconduct; and (3) certainty of conviction absent the misconduct. Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App.1998). Asking an improper question seldom calls for a mistrial because, in most cases, any harm can be cured by an instruction to disregard. Russeau v. State, 171 S.W.3d 871, 885 (Tex.Crim.App.2005) (citing Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App.1999)); Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App.2000) (“Ordinarily, a prompt instruction to disregard will cure error associated with an improper question and answer. ...”). A mistrial is required “only when the improper question is clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors.” Russeau, 171 S.W.3d at 885. We review the trial court’s denial of a motion for mistrial for an abuse of discretion. Id.

Here, the State, defense counsel, and the trial court had the following exchange:

[State]: Was there any indication— again, without going into what was said, was there any indication in your meeting [with appellant] that he had any knowledge of this incident?

[Defense]: Again, calls for hearsay. The only way he can answer that is by going into what was discussed. So, I object to it.

The Court: Overruled.

[Chavez]: He—

[State]: Again, you can’t go into what he said.

[Chavez]: Right, right. I felt that he possibly knew more than he was telling, but—

[Defense]: Objection to his opinion as speculation.

The Court: Sustained.

[Defense]: Ask that it be — I’d ask we have a jury instruction.

The Court: The jury is so instructed to disregard the answer to that question. [Defense]: Move for a mistrial.

The Court: Denied.

Although appellant contends on appeal that, in sustaining his objection to “speculation,” the trial court gave an inadequate instruction that “does not admonish the jury to disregard the statements made by Officer Chavez,” the record reflects that the trial court promptly instructed the jury to disregard Chavez’s statement. Such an instruction generally cures any error associated with improper questions and answers. Ovalle, 13 S.W.3d at 783.

This statement was the only reference to Chavez’s belief that appellant may have known more about the incident than he told the officers — the State did not emphasize this statement and it did not bring up this testimony during closing argument. Furthermore, Chavez stated that he felt that appellant “possibly” knew more than he was telling, and thus Chavez was equivocal in his statement. Chavez further testified that, at this time, appellant was not a suspect, but was merely someone who may have had relevant information about the incident, and that appellant did not become a suspect until after Chavez spoke with Carlos Martinez and David Cruz, several days after appellant’s interview. We therefore conclude that Investigator Chavez’s statement was not clearly prejudicial to appellant and of such character as to suggest the impossibility of withdrawing the impression produced on the jurors as to warrant a new trial. See Russecm, 171 S.W.3d at 885. We hold that, even if the State asked an improper question, the trial court did not abuse its discretion in denying appellant’s motion for mistrial.

We overrule appellant’s fourth and fifth issues.

Statement Made During Photospread

In his sixth issue, appellant contends that the trial court erred in permitting Officer Guerrero to testify that, while viewing a photospread, Albert Contreras identified David Cruz as the person he saw in the back of the truck, after Albert had previously testified that he did not identify the person in the back of the truck when he viewed the display. Defense counsel objected to Officer Guerrero’s testimony on hearsay grounds.

We review a trial court’s decision to admit evidence for an abuse of discretion. Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App.2003). A trial court abuses its discretion only if its decision is “so clearly wrong as to lie outside the zone within which reasonable people might disagree.” Taylor v. State, 268 S.W.3d 571, 579 (Tex.Crim.App.2008); Roberts v. State, 29 S.W.3d 596, 600 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). A trial court does not abuse its discretion if any evidence supports its decision. See Osbourn v. State, 92 S.W.3d 531, 538 (Tex.Crim.App.2002). If the trial court’s decision is correct on any theory of law applicable to the case, we will uphold the decision. De La Paz v. State, 279 S.W.3d 336, 344 (Tex.Crim.App.2009).

Hearsay is a statement, other than one made by the declarant while testifying at trial, offered in evidence to prove the truth of the matter asserted. Tex.R. Evid. 801(d). A statement is not hearsay if the declarant testifies at trial and is subject to cross-examination concerning the statement and the statement is one of identification of a person made after perceiving the person. Tex.R. Evid. 801(e)(1)(C); see also Thomas v. State, 811 S.W.2d 201, 208 (Tex.App.-Houston [1st Dist.] 1991, pet. ref'd) (holding that, under Rule 801(e)(1)(C), bolstering declarant’s identification with police testimony is admissible if declarant testifies and is subject to cross-examination concerning statement). The rule only requires that the declarant testify at trial and be subject to cross-examination concerning the identification, not that the declarant actually be cross-examined about the identification. Rodriguez v. State, 975 S.W.2d 667, 682-83 (Tex.App.-Texarkana 1998, pet. ref'd).

Contrary to appellant’s assertion on appeal, the language of Rule 801(e)(1)(C) imposes no requirement that the declarant testify at trial that he previously identified a particular person. See Tex.R. Evid. 801(e)(1)(C). Federal Rule 801(d)(1)(C), which is identical to its Texas counterpart, was “intended to solve the problem of a witness who identifies a defendant before trial, but then at trial refuses to acknowledge the identification because of fear of reprisal.” United States v. Jarrad, 754 F.2d 1451, 1456 (9th Cir.1985); see also United States v. O’Malley, 796 F.2d 891, 899 (7th Cir.1986) (allowing admission of prior identification evidence when witness admitted he previously identified defendant but recanted defendant’s involvement in offense at trial). “Rule 801(d)(1)(C) was in part directed to the very problem here at issue: a memory loss that makes it impossible for the witness to provide an in-court identification or testify about details of the events underlying an earlier identification.” United States v. Owens, 484 U.S. 554, 562-63, 108 S.Ct. 838, 844, 98 L.Ed.2d 951 (1988); United States v. Brink, 39 F.3d 419, 426 (3d Cir.1994) (“Generally, evidence is admitted under Rule 801(d)(1)(C) when a witness has identified the defendant in a lineup or photospread, but forgets, or changes, his testimony at trial.”). The Rule contemplates that third parties, such as the law enforcement officer who showed the declarant the photo-spread, will testify to the declarant’s statement of identification. See Brink, 39 F.3d at 426; United States v. Kaquatosh, 242 F.Supp.2d 562, 563 (E.D.Wis.2003) (“[T]he out-of-court identification may be introduced through the witness/declarant or through a third party witness to the identification, such as a law enforcement officer.”).

Texas courts have not addressed the scope of the id