Opinion
Nos. 05-06-01060-CR, 05-06-01061-CR
Opinion issued July 24, 2008. DO NOT PUBLISH Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 4 Dallas County, Texas, Trial Court Cause Nos. F05-32511-HK, F05-32512-HK.
Before Justices MORRIS, BRIDGES, and O'NEILL.
OPINION
Jerry Newton Castle appeals his aggravated sexual assault convictions. The jury convicted appellant and sentenced him to forty-five years' confinement in each case. In three issues, appellant argues the trial court erred in denying his motion for mistrial, sustaining the prosecutor's objection to a question by defense counsel, and permitting the trial to go forward with eleven jurors. We affirm the trial court's judgment. Because appellant does not challenge the sufficiency of the evidence to support his convictions, only a brief recitation of the facts is necessary. Appellant was charged with aggravated sexual assault of T.S., a child under the age of fourteen. During voir dire, the record shows venireperson Underwood made no response to the State's and appellant's counsel's questions asking if anyone knew anyone that had been sexually assaulted. Twelve jurors were ultimately seated, but at the close of the first day of testimony Underwood, with tears in her eyes, approached the bailiff and said "something in her past that she might have had some experience" and that she did not know if she could continue. The bailiff told Underwood to come back at 8:45 the next morning because the judge was already gone. The next morning, the trial judge questioned Underwood, who said her English was "Not too good, but enough to understand what happened" at trial the day before. Underwood stated a man in her church "kind of" touched her when she was nine years old. The man did "not really like attack or nothing," but "it was really more than normal." the man was "kind of brushing or something to the little ones." Underwood "talked to the president there," and the man left the church as a result. However, Underwood did not "know if [she] did right or if [she] did wrong." Underwood stated she was able to separate this situation in her past from the situation at trial, and she could be "fair enough" and "considerate enough." Nevertheless, when asked if she understood how important it was for her to be fair and impartial, she responded that it was "the most important thing for a lot of people in here, but I put in due consideration if you consider even if I say I'm able to, if you consider it is better to put somebody in my place." Appellant's counsel asked the trial court to remove Underwood from the jury panel and grant a mistrial. The trial court dismissed Underwood and continued the trial with eleven jurors. The eleven-member jury convicted appellant, and these appeals followed. In his first issue, appellant argues the trial court abused its discretion in not granting a motion for mistrial because Underwood "intentionally withheld on voir dire that she had been the victim of sexual abuse." Appellant's argument at trial, however, was that Underwood could not be fair and impartial. To preserve error for appellate review, an appellant must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling desired. Tex. R. App. P. 33.1 (a)(1). Accordingly, appellant has not preserved this issue for our review. Even if we were to address the issue whether Underwood withheld material information, we would conclude she did not. A defendant is entitled to a reversal because a juror has withheld information if two criteria are met: (1) the omission is material and (2) the defendant has exercised due diligence in eliciting the information. Armstrong v. State, 897 S.W.2d 361, 368 (Tex.Crim.App. 1995) (emphasis in original). Here, the record shows Underwood's English was "not too good," and she attempted to tell the judge when the testimony at trial caused her to become emotionally upset so that she did not know if she could continue as a juror. On this record, the trial court did not abuse its discretion in determining Underwood did not "withhold" any information but rather gradually became emotionally upset when the similarities between the facts of this case and her own experiences became apparent. We overrule appellant's first issue. In appellant's second issue, he argues the trial court abused its discretion in sustaining the prosecutor's objection that questioning by defense counsel during voir dire constituted an improper commitment question. The trial court has broad discretion over the process of selecting a jury. Barajas v. State, 93 S.W.3d 36, 38 (Tex.Crim.App. 2002). The court of criminal appeals undertook a thorough exposition of the law of commitment questions in Standefer v. State, 59 S.W.3d 177 (Tex.Crim.App. 2001). The court defined a commitment question to be one in which "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. We stress that all commitment questions are not improper. So long as the law requires a particular type of commitment from jurors — for example, to follow the particular law applicable to the case — then counsel may examine potential jurors concerning their ability to make that commitment. See id. at 181. If the law does not require the commitment sought, then the commitment question is improper. Id. The court set forth the inquiry we are to follow as we address the question asked in this case: so, the inquiry for improper commitment questions has two steps: (1) is the question a commitment question, and (2) does the question include facts-and only those facts-that lead to a valid challenge for cause? If the answer to (1) is "yes" and the answer to (2) is "no," then the question is an improper commitment question, and the trial court should not allow the question. Id. at 182-83. Again, a commitment question leads to an answer that a potential juror would resolve an issue, or would refrain from resolving an issue, based upon one or more facts contained in the question. See id. at 180. Here, during defense counsel's voir dire, counsel asked if there was anybody who "would be unable to sit as a juror" or make up their mind to find someone guilty or not guilty solely because the defendant was a "teacher or a preacher or some sort of relationship like that." The trial court overruled the prosecutor's objection that this was an improper commitment question. A member of the venire responded that "I would have a big problem if it was are [sic] man of God that did something like that with a kid." Defense counsel asked, "And if it turns out it is a situation like that, would it make you biased before you heard all the evidence?" The trial court then sustained the prosecutor's objection that this constituted an improper commitment question. We agree the challenged question is a commitment question. See id. To determine whether the challenged question is an improper commitment question, we ask whether it includes facts that lead to a valid challenge for cause. See id. at 182. Even if a question meets this challenge for cause requirement, however, the question may nevertheless be improper if it includes facts in addition to those necessary to establish a challenge for cause. Id. Defense counsel's question here went beyond asking whether jurors would be biased and improperly sought a commitment based on the additional facts that appellant was in a "situation like that," namely, a "man of God that did something like that with a kid." Under these circumstances, we conclude the trial court did not abuse its discretion in sustaining the prosecutor's objection to this commitment question. See Barajas, 93 S.W.3d at 38; Standefer, 59 S.W.3d at 180-82. We overrule appellant's second issue. In his third issue, appellant complains the trial court abused its discretion in failing to grant a mistrial because the trial court allowed the trial to go forward with eleven jurors even though Underwood was not "disabled." If, after the trial of any felony case begins and a juror dies or, as determined by the judge, becomes disabled from sitting, the remainder of the jury has the power to render the verdict. Tex. Code Crim. Proc. Ann. art. 36.29(a) (Vernon Supp. 2007). A juror is disabled if she has a "physical illness, mental condition, or emotional state" which hinders her ability to perform her duties as a juror. Hill v. State, 90 S.W.3d 308, 315 (Tex.Crim.App. 2002). The determination as to whether a juror is disabled is within the discretion of the trial court. Brooks v. State, 990 S.W.2d 278, 286 (Tex.Crim.App. 1999). As discussed above, the record indicates Underwood gradually became emotionally upset when the similarities between the facts of this case and her own experiences became apparent. Underwood had "tears in her eyes" when she told the bailiff she had "something in her past" and "didn't know whether she could continue or not." Underwood testified she felt "pretty bad" but was able to separate her experience from "this situation in this trial." Nevertheless, the record also indicates Underwood was crying when questioned by the trial judge concerning whether or not she could be fair. The trial judge was in the best position to determine whether Underwood's emotional state rendered her disabled. See Hill, 90 S.W.3d at 315. Under these circumstances, we cannot conclude it was an abuse of discretion to determine Underwood was disabled and proceed with eleven jurors. See Brooks, 990 S.W.2d at 286. We overrule appellant's third issue. We affirm the trial court's judgment.