No. 08-06-00301-CR
April 17, 2008. DO NOT PUBLISH.
Appeal from the 205th Judicial District Court of El Paso County, Texas, (TC# 20040D00095).
Before CHEW, C.J., MCCLURE, and CARR, JJ.
DAVID WELLINGTON CHEW, Chief Justice.
Robert Gonzalez was indicted for three counts of aggravated sexual assault of a child. A jury found him guilty on all three counts, and enhanced his conviction. The trial court sentenced him to life imprisonment. In four issues, Appellant argues the trial court committed reversible error by denying his challenges for cause against prospective jurors. Based on the record before us, we affirm. Appellant's four issues address the trial court's denial of challenges for cause during voir dire. See Tex. Code Crim.Proc.Ann. art. 35.16(a) (Vernon 2006). The denial of a challenge for cause is reviewed under an abuse of discretion standard. Swearingen v. State, 101 S.W.3d 89, 98-9 (Tex.Crim.App. 2003). To do so, we review the trial court's ruling in light of the venireperson's voir dire as a whole. Id. at 99. When the record does not contain a clearly objectionable declaration by the venireperson, or the record demonstrates a vacillating or equivocal venireperson, we accord great deference to the trial judge who had the better opportunity to see and evaluate the person. Swearingen, 101 S.W.3d at 99.
Veniremember 57
In Issue Three, Appellant argues the trial court erred by denying his challenge for cause to Juror Number Fifty-Seven, Alicia Contreras-Nunez. The State responds by arguing that the record indicates that Appellant's challenge for cause against Ms. Contreras-Nunez was granted, leaving nothing for this Court to review. To preserve error on a denied challenge for cause, an appellant must demonstrate on the record that: (1) he asserted a clear and specific challenge for cause; (2) he used a peremptory strike on the challenged venireperson; (3) all his peremptory challenges were exhausted; (4) his request for additional strikes was denied; (5) he identified a remaining objectionable juror; and (6) he stated that he would have utilized a peremptory strike against the objectionable juror had the court granted additional strikes. Allen v. State, 108 S.W.3d 281, 282 (Tex.Crim.App. 2003). Following the general voir dire by the attorneys, each veniremember who raised a hand in response to questioning was brought to the bench for individual discussion. Ms. Contreras-Nunez expressed concern that it would be difficult for her to find Appellant not guilty because she would have her ten-year-old daughter on her mind as she considered the evidence. The record then indicates that the trial court granted defense counsel's challenge. In addition, the trial court's notations on the jury panel list shows that Ms. Contreras-Nunez's name was not included in the pool at the time peremptory strikes were exercised. The list shows that defense counsel struck ten other panel members, not including juror number fifty-seven. However, for reasons which are unclear from the record, and which neither party addresses in their briefs, Ms. Contreras-Nunez was re-examined later in individual voir dire. According to the court reporter's record, near the end of the individual examinations, Ms. Contreras-Nunez was again asked why she believed she could not serve as a juror. Following the trial court's description of the jury's role in determining guilt or innocence of the accused, Ms. Contreras-Nunez indicated that she could consider the evidence presented and hold the State to its burden of proof. Defense counsel's challenge for cause in this instance was denied. Based on the outcome of Ms. Contreras-Nunez's first interview with the trial judge and particularly the notations on the trial court's panel list, and notwithstanding the puzzling re-interview and denial of the repeated challenge, we conclude Appellant's challenge for cause, which was granted, was effective as well. Appellant was not forced to use a peremptory strike to remove juror number fifty-seven from the panel and so there is nothing to review. See Feldman v. State, 71 S.W.3d 738, 744 (Tex.CrimApp. 2002). Issue Three is overruled. Veniremembers 11, 56, and 60
In Issues One, Two, and Four, Appellant contends that the trial court erred in denying his challenges for cause against veniremembers eleven, fifty-six, and sixty. All three panel members were challenged on the basis that they expressed a bias against Appellant. Again, the test is whether the bias or prejudice would substantially impair the prospective juror's ability to carry out his oath and instructions in accordance with the law. See Feldman, 71 S.W.3d at 744. The law must be explained to the prospective juror and the juror must be asked whether he can follow that law regardless of his personal views before the juror can be excused for cause of this ground. Feldman, 71 S.W.3d at 744. The burden is on the proponent of the challenge for cause to establish that the challenge is proper. Id. at 747. This burden is not met until the proponent has demonstrated that the panel member understood the requirements of the law, and was not able to overcome his prejudice well enough to follow it. Id. In the case of an equivocating veniremember, the reviewing court must defer to the trial court's decision. Moore v. State, 999 S.W.2d 385, 400 (Tex.Crim.App. 1999). Juror number eleven in the venire panel was Mr. Carlos Perez Guardado. He was questioned about his ability to review the case in an unbiased manner as his nephew had been the victim of a sexual assault. Following Mr. Guardado's admission that a family member had been a sexual assault victim, and his concern that he would be able to put that experience aside in deciding the case, the following exchange took place: The Court: And so the people that did that to him should walk free? The people who did that should be punished, right? The question here is not whether — if the person committed the offense, they should be severely punished. There is no question about that. People walking across the street should not be punished, right? But they have to prove that this person committed the offense and you should be able to listen to the evidence and decide if he did it or did not. And remember, the whole burden of proof is on the state. And until you — you are under oath that they have got to prove it. Otherwise it is not guilty. Now, if there is a verdict of guilty, punishment, there is no question about being hard but the question was whether he did it. Listen to the evidence and decide. Do you think you could? Thank you. Take a break. Defense Counsel: I would like to have questions. And I will make a motion as well. Challenge for cause. The Court: Which question? Defense Counsel: Well, I was going to ask, renew the question about following the instructions. The Court: He said he could follow the instructions. . . .
Defense Counsel: My motion? The Court: Denied. He said he could follow the questions. Based on this discussion, Appellant has not carried his burden to establish that Mr. Guardado would not be able to follow the court's instruction despite his personal experience. While the transcript does not include an audible response from the prospective juror, we are obliged to conclude, based on the trial court's response, that Mr. Guardado indicated that he would be able to decide the case based on the evidence and instructions provided during trial. It is within the trial court's discretion to deny a challenge for cause against a potential juror who equivocates in his positions. See Moore, 999 S.W.2d at 400. Therefore, the trial court did not abuse its discretion by denying Appellant's challenge for cause. See id. Issue One is overruled. In Issue Two, Appellant contends the trial court erred by denying his challenge for cause to Juror Number Fifty-Six, Venesa Morales. During individual voir dire, Ms. Morales expressed concern about the effect the trial may have on the victims, as well confusion regarding the evidence in the case versus the events as described in the indictment. However, following the trial court's explanation of the jury's role to evaluate the credibility of witnesses and its re-emphasis of the jury's duty to hold the State to its burden of proof, Ms. Morales agreed that she could serve as a juror in this case. Therefore, much like Mr. Guardado, Appellant has simply not demonstrated that the trial court abused its discretion by denying the challenge for cause to Ms. Morales. See Moore, 999 S.W.2d at 400. Issue Two is overruled. In Issue Four, Appellant argues the trial court erred by denying his challenge for cause against Juror Number Sixty, Lori Gabriel. Ms. Gabriel's individual voir dire proceeded as follows: Venireperson Gabriel: I have two adopted children and they are very young and I don't think that I could be honestly biases in this situation like this because one of my children has already had kind of a rough start out and everything and I am just afraid that I couldn't be honest with it. The Court: Understand — okay. The question is not whether — if that person committed the offense, that's bad. That's bad and that person should be punished severely but if he didn't commit the offense, should he be wrongfully accused? Venireperson Gabriel: I agree. And I think the fact that he is already here, that they have to have so much evidence against him. The Court: No, that is not particularly so. That's why I mention to you that fact that a person has been indicted for the offense, remember, the Defendant is not supposed to appear before a grand jury and usually it is by statements. Venireperson Gabriel: You make the call, Judge. Because I don't — The Court: Like I said, it is not easy at all, ma'am. And at the same time, we all believe these things in regard to people being abused. Venireperson Gabriel: And I have a thing like this, it has happened to my son, that has happened to him in his short life. I think nothing like that but a lot of neglect and abuse and stuff like that and so that's why. The Court: I mean you as a citizen. Venireperson Gabriel: I am ready to serve. I am just not sure if I can be — The Court: You have to base your decision based on the evidence and base your decision on the evidence. Venireperson Gabriel: I don't know if I can be [un]biased in this situation. If it was murder, I think I could be easier [un]biased than when it comes to children. The Court: Thank you. Take a break. This record indicates that although she had concerns about her ability to separate her personal experience and feelings from her deliberations, Ms. Gabriel equivocated on the question of her ability to follow the law and decide the case on the facts presented at trial. She indicated she was ready to serve, and deferred to the trial court to decide whether she should be placed on the final panel. When a juror equivocates in this manner, the reviewing court must defer to the trial court's evaluation of the veniremember. See Moore, 999 S.W.2d at 400. Because the record does not demonstrate an abuse of discretion, Issue Four is overruled. We affirm the trial court's judgment.