Vollick, Richard H.
PD-1193-15
Tex. App.Oct 16, 2015Background
- Richard Vollick was convicted of felony DWI (third offense) and sentenced to 70 years after a jury trial in Nueces County; he had stipulated prior convictions.
- The evening before jury deliberations, a local TV news broadcast aired video of the trial and interviewed the county District Attorney, who discussed Vollick's multiple prior DWI convictions and habitual-offender context.
- Defense counsel moved for mistrial and asked the trial court to poll jurors (noting two jurors worked in media); the court denied the mistrial and refused to poll the jurors.
- Vollick raised several trial objections on appeal: prosecutorial misconduct via media comments, denial of jury polling under Tex. R. Evid. 606(b), improper voir dire limitation on minimum punishment, and alleged false/misleading testimony about glaucoma and HGN.
- The Thirteenth Court of Appeals affirmed: it found no showing of actual prejudice from the broadcast, upheld denial of polling to avoid exposing jurors to the report, rejected voir dire and new-trial claims, and concluded any alleged false testimony was not material given the evidence.
Issues
| Issue | Vollick's Argument | State's Argument | Held |
|---|---|---|---|
| Whether DA’s media comments about Vollick’s criminal history required a mistrial | DA violated disciplinary Rule 3.07 and the Sixth Amendment; harm should be presumed or at least jurors should be polled to show harm | No actual prejudice shown; comments did not name Vollick explicitly for jury; trial court instructions protected fairness | Denial of mistrial affirmed — no abuse of discretion; must show actual prejudice for reversal |
| Whether trial court erred in refusing to poll jurors about exposure to the news report (Tex. R. Evid. 606(b)) | Polling was necessary to discover actual bias, especially with media employees on jury | Polling risks exposing jurors to the report for the first time; trial court’s admonitions suffice | Denial of polling affirmed — court exercised discretion to avoid introducing the report to jurors |
| Whether trial court erred by not allowing venire questioning about the 25-year minimum punishment | Venire should be informed/queried that habitual-offender stipulation made 25 years the minimum | Court properly refused to instruct panel that stipulation fixed minimum; parties could still question panel and stipulation could be withdrawn | No error — counsel could question panel and the court did not abuse discretion |
| Whether denial of new trial was error based on allegedly misleading testimony about glaucoma/HGN | Testimony gave false impression about glaucoma’s effect on HGN and misled jury; material to guilt | Any error was harmless; overwhelming incriminating evidence made false impression immaterial | Denial of new trial affirmed — testimony not shown material or to have reasonably affected verdict |
Key Cases Cited
- House v. State, 947 S.W.2d 251 (Tex. Crim. App. 1997) (rules of professional conduct not to be used as tactical weapons; relief requires showing of actual prejudice)
- Powers v. State, 165 S.W.3d 357 (Tex. Crim. App. 2005) (clarifies application of attorney-witness/dual-role issues and prejudice inquiry)
- Ocon v. State, 284 S.W.3d 880 (Tex. Crim. App. 2009) (mistrial is extreme remedy; denial reviewed for abuse of discretion)
- Mays v. State, 318 S.W.3d 368 (Tex. Crim. App. 2010) (trial court may refuse jury poll about media exposure to avoid exposing jurors to coverage)
- Powell v. State, 898 S.W.2d 821 (Tex. Crim. App. 1994) (similar holding that polling may be refused to prevent first-time exposure of media content to jurors)
- Smith v. Phillips, 455 U.S. 209 (U.S. 1982) (due process requires inquiry hearing when juror partiality is alleged)