Opinion
No. 05-04-00200-CR
Opinion Filed July 28, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 416th Judicial District Court, Collin County, Texas, Trial Court Cause No. 296-81228-03. Affirm.
Before Justices WHITTINGTON, FITZGERALD, and RICHTER.
MEMORANDUM OPINION
Tommy Lynn Duncan appeals his conviction for sexual assault of a child under the age of seventeen. Duncan pleaded not guilty to the charge. His case was tried to a jury, which found him guilty and assessed punishment at twenty years' confinement and a $10,000 fine. In a single issue, Duncan charges that the trial court abused its discretion in overruling Duncan's challenge for cause to a potential juror when bias or prejudice was established as a matter of law. We affirm the judgment of the trial court. During voir dire in this case, the prosecutor asked whether any member of the panel had ever been a victim of sexual assault or had known a victim of sexual assault. The gentleman identified as Juror 35 responded to the prosecutor's inquiry, and the following exchange took place. A: Yes, ma'am. My daughter-in-law who was abused. Q: Did her case go through the court system? A: Yes, ma'am. Q: How long ago was that?
A: Probably twelve years ago, ten or twelve years ago.Q: Was she your daughter-in-law at the time? A: No, ma'am.
Q: Would that experience cause you to have any bias or prejudice on a case like this?A: Yes, ma'am, I would think. Q: You couldn't be fair to the defendant? A: I would try to be fair, but I think — Q: But could you try to be fair? A: Yes. The Court: Did you say you had a bias?
Q: He said he could be fair. Could you be fair? Could you set that experience aside and be a fair juror?A: I would try to set it aside. Based on this exchange, Duncan challenged Juror 35 for cause on grounds of bias. The trial court denied the challenge, and Duncan properly preserved his complaint for our review. A party may properly challenge any prospective juror who demonstrates a bias or prejudice against the defendant. Tex. Code Crim. Proc. Ann. art. 35.16(a)(9) (Vernon 1989). Likewise, a defendant may properly challenge any prospective juror who has a bias or prejudice against any phase of the law upon which the defendant is entitled to rely. Id. art. 35.16(c)(2). 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 law. See Feldman v. State, 71 S.W.3d 738, 744 (Tex.Crim.App. 2002). When reviewing a trial court's decision to deny a challenge for cause, we examine the entire record to determine if there is sufficient evidence to support the court's ruling. See Patrick v. State, 906 S.W.2d 481, 488 (Tex.Crim.App. 1995). We give great deference to the trial court's decision because the judge is present to observe the demeanor and responses of the venireperson. King v. State, 29 S.W.3d 556, 568 (Tex.Crim.App. 2000); Patrick, 906 S.W.2d at 488. In reviewing the record below, we ask whether the totality of the voir dire testimony supports the court's finding that the prospective juror was able to follow the law as instructed, and we reverse only if a clear abuse of discretion is evident. King, 29 S.W.3d at 568. We will not overturn the trial court's ruling unless bias or prejudice has been established as a matter of law. Little v. State, 758 S.W.2d 551, 556 (Tex.Crim.App. 1988). In Duncan's case, the above-quoted exchange does not establish bias as a matter of law. At the outset of the exchange, Juror 35 did respond that he "would think" he could have a bias on a sexual abuse case. By the end of the exchange, however, he replied without equivocation that he could try to be fair. Our review of the record indicates counsel for Duncan did not follow up with Juror 35 on this line of questioning. When a potential juror's answers are vacillating, unclear, or contradictory, we give particular deference to the trial court's decision because the trial judge was present to observe the demeanor of the prospective juror and to listen to his tone of voice. See Threadgill v. State, 146 S.W.3d 654,667 (Tex.Crim.App. 2004); see also Swearingen v. State, 101 S.W.3d 89, 99 (Tex.Crim.App. 2003) (when record demonstrates vacillating or equivocal venireperson, we accord great deference to trial judge who had better opportunity to see and hear person); Hernandez v. State, 757 S.W.2d 744, 753 (Tex.Crim.App. 1988) ("[W]here a venireman is shown on the record to be genuinely noncommittal, vacillating, equivocal, or uncertain, we must make allowances for the fact that a judge, trying his qualifications for jury service, had an opportunity to observe his demeanor, intonation, and expression."). We have, as the law requires, looked beyond this single exchange to the voir dire record as a whole. See Patrick, 906 S.W.2d at 488. That review revealed that Juror 35 gave direct responses to two other questions. In response to a question from the State, Juror 35 stated that he had served on a jury in a child molestation trial in Sherman, less than ten years ago. Then in response to a question from counsel for Duncan, Juror 35 stated that he could consider the entire range of punishment available to Duncan if found guilty. Neither of these responses supports an allegation of bias. Duncan has failed to establish that Juror 35 was biased as a matter of law. See Little, 758 S.W.2d at 556. We discern no abuse of discretion on the part of the trial court. We decide Duncan's single issue against him. We affirm the judgment of the trial court.