*1 109 on these issues.30 view our decisions sixty-six are fifty through of error
Points overruled. af- judgment of the trial court is
The firmed.
PRICE, WOMACK, JOHNSON, JJ., concurred.
COCHRAN, J., points concurred in one, two, three, and five but error joined of the court. otherwise WEBB, Appellant, Allen Samuel
v.
of Texas.
STATE
No. PD-0074-06.
Appeals
Court of Criminal
of Texas.
13,
June
2007.
22,
Rehearing
Aug.
Denied
2007.
State,
438,
521,
See,
(Tex.Cr.App.2003); Hughes
e.g., Perry
532
30.
v.
158 S.W.3d
S.W.3d
denied,
State,
833,
(Tex.Cr.App.2004),
(Tex.Cr.App.
cert.
546
446-49
24
844
S.W.3d
933,
416,
State,
18,
(Tex.
2000);
U.S.
126 S.Ct.
Stan Nelson, Lla- Atty., Asst. District Cheryl Austin, no, Paul, Atty., State’s Matthew State.
OPINION MEYERS, J., delivered Court, KELLER, P.J., which
PRICE, WOMACK, KEASLER, JJ„ COCHRAN,
HERVEY,
joined.
convicted of sexual as-
Appellant was
sentencing,
child. Prior to
sault of a
and new
filed motions for mistrial
trial court denied.
which the
af-
appeals
and the court of
appealed,
State, 2005
firmed the conviction.
v.Webb
Tex.App. LEXIS
FACTS campus director Appellant was facility for residential a state-licensed HI but the emotionally ty against Appellant, troubled The com- a suit filing children. filed facility. was a asked that the suit not plainant resident of the be crimi- Appellant denied he had it would interfere with the Although because at- engaged activity Accordingly, complainant’s sexual com- nal with trial. *3 civil by he was the he would wait to file the plainant, torney indicted said 1, November trial be- jury Appellant’s on 2001. His suit until after trial. later, gan years August almost two on court for The trial denied the motions dire, defense During 2003. voir mistrial, finding although that State the any asked of jury panel counsel the knowledge probably which should had panel anyone the members had “heard out of have been disclosed to the defense say they discuss case or someone caution, of no an abundance there was thought knew what the facts the informing harm in the not defendant prospec- be?” case None the a suit Addi- potential that would be filed. jurors responded. jury tive the After tionally, juror court found that the the guilty verdict, a
returned but before the the trial grand jury served on and the both assessed, jurors sentence was one the jury no actual facts the case about that she revealed had also on the could actively in her mind and no harm that Ap- indicted Appellant. juries. from her have come service on both pellant filed a motion a for mistrial and motion for new trial on the part based OF COURT APPEALS juror’s jury service both the grand court’s the denying The trial decisions trial jury. and the new trial were motions for and mistrial hearing motions, juror
At a the abuse of In a reviewed for discretion. that all testified she remembered from the opinion, appeals memorandum the court of Appellant’s was name the Appellant’s grounds review overruled for that charges were filed. that She stated trial judgment and affirmed the any testimony she did not remember if or Addressing prior grand court. the written documents were juror, by appeals service a grand jury. She also that, did not remember to dili held because faded panel being the voir during dire gently statutory inquiries the as to press any whether of them had ever heard the grounds challenge, gave up for facts of the case discussed. She stated juror dis was did not could not know that she show qualified. And did not sit on the trial both prejudiced. was biased or jury, she had not mentioned ser- Tex.App. LEXIS 6231 Webb v. *17-19, vice on the other at at *4-*6. WL jurors during deliberations. The court also determined indicating that
Appellant’s motion for and mo- no evidence mistrial there was alleged going tion for new trial also knew that a lawsuit was State pros- prosecutor complainant, failed to inform him be filed thus the im- deliberately not complainant might file a suit ecutor did withhold civil motions, And, evidence. due abun- hearing peachment him. At evidence, that, impeachment testified dant additional a the attor- to inform the phone she received call from State’s failure defense fifing ney representing complain- considering who was not attorney possibili- preclude Appellant civil suit did ant. The mentioned the cause were other factors cross-examining impeaching the com- there Self made harmless. juror’s service LEX- plaining Tex.App. witness. Id. *25, at at *9. IS 6281 2005 WL Arti of Criminal Procedure Code 35.16(a)(7) says cle that it is a
ANALYSIS if a served on challenge panelist for cause An a trial appellate reviews the indict which returned ruling court’s on a motion for mistrial and However, it is an absolute dis ment. an using motion for abuse-of- new grounds All qualification. standard of review. view
discretion
Article
be forfeited. See
light
the evidence
most favorable to
Therefore,
35.16(a);
44.46.
Article
*4
trial
ruling
uphold
the trial court’s
the
is
if not
challenge forfeited
ruling if it was within the zone of
question
jurors
court’s
on
made.1 Failure to
the
State,
the
disagreement.
reasonable
Wead v.
of
subject constitutes a forfeiture
126,
(Tex.Crim.App.2004).
par
129
129
right
S.W.3d
to
thereafter. Neither
judgment
ty
do not
our
asked the
specifically
panel
We
substitute
court,
jury that
previously
grand
that of the trial
but rather
decide
on the
we
If
fact had been
Appellant.
whether the trial court’s decision was arbi
indicted
Thus,
had chal
trary
party
court
and either
or unreasonable.
determined
denying
to
service
lenged
juror
prior
its
in
a motion
the
due
abuses
discretion
Appellant,
only
grand
for new trial
when no reasonable view on the
indicted
excused.
support
certainly
the record could
should have been
of
State,
ruling.
However,
party challenged
v.
this ve-
court’s
Charles
146
neither
204,
(Tex.Crim.App.2004).
208
nirewoman.
S.W.3d
State,
65,
In
v.
116 Tex.Crim.
Mitchell
A. PRIOR GRAND JURY SERVICE
27
one of
(Tex.Crim.App.1930),
800
S.W.2d
BY AJUROR
jurors
during voir
prospective
the
stated
the
juror’s
thought he had been on
argues that the
failure
dire that he
appellant.
grand jury
the
indicted the
to disclose the fact that she served on
venireman, but
challenged
him denied him
the
grand
that indicted
challenge
the
because
impartial jury.
to a
He
the court overruled
right
his
fair and
the list
juror
the
name
not on
the
did not
venireman’s
was
contends
because
later deter-
questions
jurors.
respond
general
he
case,
on
mined that the venireman had served
regarding knowledge
the
panel
challenge for
grand jury
and thus the
specific ques
not need
more
he did
to ask
stat-
granted.
cause
have been
preserve
right
challenge
to
should
tions to
his
diligent
appellant’s
ed that the
counsel
juror.
ap
He
that the court of
suggests
he
discovering
upon
in
the cause
which
did not
peals’ conclusion that he
ask suffi
proce-
he
challenge,
based
followed
incorrect due to the
his
questions
cient
is
statute,
did ev-
in the
v.
Tex. dure set forth
court’s reliance on
39
Self
455,
power
prevent
to
erything within his
(Tex.Crim.App.
47
26
Crim.
S.W.
jury.
Id.
serving
1898),
misplaced be
venireman
argues
which he
is
(Tex.Crim.App.1993).
275
opinion,
S.W.2d
well
851
1. While the court of
as
grand jury
many
past
say
prior
cited
that a
as
cases
A
for cause due to
used,
challenge for
if not
it is
rights
cause is waived
category
not in the
service is
right
say
accurate
is
more
expressly waived.
must be
forfeited
challenge.
by
request
See Marin
failure
in
at
also stated that
the issue we dealt with
S.W.2d 800. We
This is
Self
juror
that a
who
question
a different
would be
State. We stated
Self
necessarily
appellant
diligently press
had the
failed to
served on the
is
but,
juror,
by
statutory inquiries
disqualified
provided
as to the
as a
as
statute,
challenge,
ordinarily,
challenge,
because
in the
it is a cause for
of which
ab-
himself,
upon
may may
sence of
fraudulent
or
not avail
purpose
defendant
juror,
part
any injury
Appellant,
or
at
26. Similar
S.W.
defendant,
appellant
the failure to
the veni-
insisted that he used
question
Self
regarding
re
service
diligence
service
due
discover
that returned
dining
asking
prospective
the indictment constitutes a
voir dire
juror
forfeiture
to thereafter com-
if he had formed an
plain.
juror replied
Id. at
800. There-
case.
that he had
S.W.2d
Since
fore,
not,
it
not required
appellant
inquire any
is
did not
fur-
ther, because,
answer,
discharged.
served on the
be
based on this
Prior service on the
raises a
that he
assumed
did not sit
bias,
implied
which
jury.
question pre-
be
We stated that
Mitchell,
challenged or
diligence
discovering
forfeited.
Id.
sented was one of
*5
timely
properly
challenge
the defense
and
raised the
cause
and determined
implied
juror
bias of
appellant
aris-
failed in the exercise of
ing
grand jury
from service on the
then he could not
diligence,
complain
this
indictment;
returned the
juror
he did not forfeit
had not been excused.
Id.
the question,
statutory
but exercised his
sitting
The
makes
on a
statute
right by challenging the venireman.
Id. In
challenge
a cause for
due to the fear
contrast, Appellant did not
specific
ask
that a person
who served on the
enough questions to determine whether
may
which returned
indictment
anyone on the panel had served on the
opinion
have
an
in the case that
formed
grand jury that
indicted him and he did
appellant.
to the
But this
was adverse
challenge
the venirewoman. There-
presumption does not eliminate the neces-
fore, he
right
forfeited the
sity
during
ask
voir dire all
appellant
juror
should have been excused.
statutory questions
of the relevant
to de-
juror
argues
may
disquali-
the better
termine whether a
be
view is that when
response
juror might truthfully
there is no
fied. A
answer that
general question
familiarity
present
having
about
he had no
recollection of
case,
though
about the
then
opinion
there is no need to formed an
the case even
specific questions
grand jury
ask more
that returned
order to he served
However,
preserve
disagree.
the error.
It is
the indictment.
if he had been
upon
specifically
directly
incumbent
counsel to
ask
asked whether he served on the
questions
grand jury,
which will determine whether
he
then remember that
juror
challenge
questioning
have a
the venire- he had.
Self
jury panel
regarding
opin-
member. The
does not know
whether he had formed an
statutory challenges
and
in the
did not make him recall
thus
ion
case
jurors likely
prospective
do not know that he had served
There-
parties
trying
what the
are
to determine which returned the indictment.
fore,
enough
appellant
during
responsi
voir dire.
It is counsel’s
it was not
for
bility
enough
general
regarding whether
questions specific
questions
to ask
to ask
case;
an
in the
they require.
elicit the answers
he had formed
Accord-
specifically
have
covered the
cross-examination of
witness.
should
also
com-
grounds
ing
Appellant,
other
listed
the statute before
the fact that
diligence
attorney
be
have used due
plainant
he could
held to
hired an
and was consid-
determining
applicable challenges
ering
against
him
filing a civil suit
showed
459-60,
claiming
for cause. Id. at
(citations omitted).
mined that the trial court did not abuse its
by
The cases cited
are not on
failing
grant Appellant’s
discretion in
point.
In Cook v.
On ex- judgment appeals, appellant under the indictment. dire, appellant specif- ask During plaining voir defense counsel asked “did not members, questions enough the venire one of whom was ic to determine whether H., [jury] ... on the anybody anyone panel “Is there had served Sara panel anyone grand jury.” majority opines heard discuss also entire has say they thought reasonably case or someone that the trial court could have that, trial, they knew what facts of the case H. concluded at the time of Sara H. did A respond. be?” Sara or evidence “did not remember facts H., twelve, including later select- Sara was presented have been to the sworn, and tried and ed and was appellant against Appel- and she was not biased convicted. lant.” guilt punishment
Between previ- I dissent. As I noted respectfully trial, that Ju- stages appellant learned dire, counsel, voir ously, during defense previously ror H. had served on Sara the venire whether members indicted him. anyone heard this case. had ever discuss a timely mistrial and filed motion for certainly specific That argued motion for new both of which anyone on enough to determine whether respond during H.’s that Sara failure to venire, H., including had served Sara appellant opportunity dire denied voir grand jury. anyone How could concerning any “follow-up questions ask accusatory grand jury, serve on bias, or partiality, prejudice [Sara H.] body that indicted without hear- appellant, knowledge of may have had based on her discuss of this case? ing someone the facts her as purported facts as re- Certainly, must have further juror.” argued evidence, inad- probably it ceived some of right him his that Sara H.’s actions denied court, heard the and must have missible intelligent perempto- of his exercise The conclu- prosecutor. argument his ry challenges and causal H. failed to inescapable is sion Sara effective of counsel. assistance dire and appropriately during voir respond so, if she had she would done hearing, at which evidentiary After an challenged for testified, cause and struck been H. trial court denied Sara notes, majority jury panel. As the appellant’s The court both of motions. *8 35.16(a)(7) of Article the Code Criminal that it H. “had explained found Sara to be actively in allows a member case Procedure venire no actual facts about the previously mind, challenged have and that harm could her no grand jury. after on the serving served [her] come serving jury.” trial court agree I also do not that Sara reasonably concluded upheld Third later could Appeals Court Un- against appellant. not biased H. was rulings the trial court’s I would hold presented, did der the facts [de no time voir [during dire] “[a]t a matter impliedly H. was as inquire anyone had Sara biased counsel whether fense] my opinion, improbable In it is of law. on a —or H., think H. indi whatever she did he Sara Sara at issue—nor
H7 mind, her own could sit as a without
being previous influenced her service as event, grand juror. the threat service biased her was great too ignore. Finally, Sara H.’s on appellant’s service jury, having after accusatory served on the
body him, appearance that indicted has the impropriety. Frankly, really it looks
bad. I note that all these events occurred county
in a very population, limited where, presumably, everyone every knows
one else’s business. I also note that case, very similar Chief Justice Arnot ex pressed jurors the view that who had also jurors impliedly
served as were bi ased as a matter of law. See Freeman v. 168 S.W.3d (Tex.App.- 893-894 ref'd) (Arnot, pet. C.J.,
Eastland dis senting).
I respectfully I dissent. would hold that the trial court abused its discretion in de-
nying appellant’s motions for mistrial and
new erred in holding otherwise.
Roman Merker ALPERT and Renee
Picazo, Next Friend of Daniel
Alpert, Appellants, GERSTNER, Individually Karen S. as Receiver for the Roman Merker Al- Trust, pert Alpert the Daniel James Trust, Alpert and the Robert Trust,
Children’s and Davis Ridout Gerstner, L.L.P., Appellees. Jones & No. 01-05-00418-CV. Texas, Appeals Court of *9 (1st Dist.). Houston Aug. 2006.