Opinion
NO. 01-17-00405-CR
06-12-2018
EVAN HOVEN GAMBLE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 2 Harris County, Texas
Trial Court Case No. 2104192
MEMORANDUM OPINION
A jury convicted appellant, Evan Hoven Gamble, of misdemeanor driving while intoxicated ["DWI"] and assessed punishment at 30 days' confinement in jail. In four issues on appeal, appellant contends the trial court erred in (1) failing to exclude two potential jurors for cause and (2) compelling appellant
to give testimony that violated his Fifth Amendment privilege against self-incrimination. We affirm.
BACKGROUND
Appellant was arrested and charged with DWI after he crashed his car into a building inside an apartment complex. At trial, he claimed that he was not intoxicated when he had the accident, but he became intoxicated when he later took a pill that he had in his pocket. The arresting officer administered field sobriety tests at the police station, and, based on appellant's performance, secured a warrant for a blood draw. Appellant's blood test revealed a blood alcohol content of 0.133.
DENIAL OF CHALLENGES FOR CAUSE
In issues one and two, appellant contends that the trial court violated article 35.16(a)(10) of the Texas Code of Criminal Procedure when it sought to rehabilitate jurors who either (1) "expressed an unequivocal bias against Appellant," or (2) "clearly expressed an unequivocal bias against the law." Appellant contends that such rehabilitation is prohibited under article 35.16(a)(10), which provides that a challenge for cause may be based on the following:
That from hearsay, or otherwise, there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant as would influence the juror in finding a verdict. To ascertain whether this cause of challenge exists, the juror shall first be asked whether , in the juror's opinion , the conclusion so established will influence the juror's verdict. If the juror answers in the affirmative , the juror shall be discharged without further interrogation by either party or the court. If the juror answers in the negative, the juror shall be further
examined as to how the juror's conclusion was formed, and the extent to which it will affect the juror's action; and, if it appears to have been formed from reading newspaper accounts, communications, statements or reports or mere rumor or hearsay, and if the juror states that the juror feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, the court, if satisfied that the juror is impartial and will render such verdict, may, in its discretion, admit the juror as competent to serve in such case. If the court, in its discretion, is not satisfied that the juror is impartial, the juror shall be discharged[.]TEX. CODE CRIM. PROC. ANN. art. 35.16(a)(10) (West 2006) (emphasis added).
Standard of Review
We review a trial court's decision to deny a challenge for cause by looking at the entire record to determine whether sufficient evidence supports the ruling. Davis v. State, 329 S.W.3d 798, 807 (Tex. Crim. App. 2010) (citing Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim. App. 2002)). "The test is whether a bias or prejudice would substantially impair the venire member's ability to carry out the juror's oath and judicial instructions in accordance with the law." Id. (citing Gardner v. State, 306 S.W.3d 274, 295 (Tex. Crim. App. 2009)). In applying this test, we must afford considerable deference to the trial court's ruling because the trial judge is in the best position to evaluate a panel member's demeanor and responses. Id. A trial court's ruling on a challenge for cause may be reversed only for a clear abuse of discretion. Id. (citing Gardner, 306 S.W.3d at 296). "When a venire member's answers are vacillating, unclear, or contradictory, we accord particular deference to the trial court's decision." Id. (citing Gardner, 306 S.W.3d at 296).
Venireperson 12
During voir dire, defense counsel asked the venire about experiences they might have had with alcohol or DWI such that it might affect their deliberations in the case. The following exchange then took place with Venireperson 12:
[Defense counsel]: Okay. Anybody else? Yes, sir, [Venireperson 12].
[Venireperson 12]: I'm a member of AA. My father was an alcoholic, my younger brother.
[Defense counsel]: And you got a lot of experience with alcohol. Could you set that aside and judge this case or is that going to affect your judgment in a case like this?
[Venireperson 12]: You might say it would color my judgment.
[Defense counsel]: So these are those yes or no. Would it affect your judgment in a case like this? Judge is going to make you say yes or no, too.
[Venireperson 12]: It's strictly a binary.
[Defense counsel]: Yeah, I hate that it is.
[Venireperson 12]: Yes.
[Defense counsel]: Okay. Thank you, [Venireperson 12], for letting me know. I appreciate that. Thank you for sharing with me. Anybody else that has a certain thing like this that would affect your judgment in a case like this?
Thereafter, the following exchange took place at the bench:
[Trial court]: Juror No. 12, would you please come forward. What's the reason for him?
[Defense counsel]: A member, and he's got alcoholism in his family.
[Trial court]: Is there some alcoholism in your family or something like that?
[Venireperson 12]: Yes.
[Trial court]: Who?
[Venireperson 12]: My father, my younger brother and myself.
[Trial court]: And you're in AA now?
[Venireperson 12]: Yes.
[Trial court]: How long have you been in AA?
[Venireperson 12]: 24 years.
[Trial court]: Congratulations. That's fantastic. My father was an alcoholic, my brother is one now. If you were to sit as a juror in a DWI trial, you listen to the evidence, and you sit there and think, Well, the evidence did not prove to me beyond a reasonable doubt he is guilty, but my father was an alcoholic, my brother, so now I'm going to find this guy guilty just because of that.
[Venireperson 12]: My brother died of a drug overdose, not alcohol.
[Trial court]: Okay. Well, your father, do you think you'd find him guilty just because of your father and your past with alcohol? Do you see my point?
[Venireperson 12]: Sure. No, I don't think that alone.
[Trial court]: Do you understand how it would be interently unfair for you to hold it against the defendant?
[Venireperson 12]: I do.
[Trial court]: Your father's situation, your past situation.
[Venireperson 12]: Yes.
[Trial court]: But we also realize there are people like my mother to this day should not sit as a juror in a burglary case as a result of her experience over 34 years ago as a victim of a burglary. She'd be a fine juror today in a DWI case or a drug case but she even to this day should never sit as a juror in a burglary case as a result of her being a victim. You're the only one who can tell us if you can set it aside the person or your past personal experience and your personal experience with your father and be a fair and impartial juror in a trial involving an accusation of driving while intoxicated, that's fine. If you don't feel like you can set it aside, that's fine as well.
[Venireperson 12]: Well, as I said, it colors my judgment. I think I could be fair.
[Trial court]: Well, that's kind of what [Defense counsel] said about telling his fiancée he thinks he can be honest or faithful when he goes to Las Vegas. The very first thing every juror is required to do is stand up and raise their right hand and take an oath to render a true verdict according to the law and evidence, so help you God. Answer to that oath is I will or I can't. It's not I think I can. It's a promise to all these lawyers and the defendant and me that you understand what the law requires you to do, and you will do it. It's a promise you have to make at the beginning of a trial, a promise you have to keep for the duration of the trial. It's a very important promise. If you can make us that promise, that's fine. If you don't feel like you can make us that promise, that's fine as well. What do you think?
[Venireperson 12]: Let me say this. I would want the State to prove its case.
[Trial court]: I mean, you served as a juror in two criminal trials before. I think you understand the seriousness of the oath you take when you serve as a juror—
[Venireperson 12]: I do.
[Trial court]:—in a criminal trial.
[Venireperson 12]: I do.
[Trial court]: All right.
[Venireperson 12]: Yeah.
[Trial court]: Can you make us that promise?
[Venireperson 12]: Yes.
[Trial court]: Okay. You can be seated.
Venireperson 9
During voir dire, defense counsel discussed the presumption of innocence with the jury and asked the jury if they could presume that the defendant was 100% innocent. The following exchange then took place with venireperson 9:
[Defense counsel]: Somebody else raised their hand? . . [Venireperson 9], you cannot presume him—
[Venireperson 9]: I don't think he would be one hundred percent.
[Defense counsel]: The law says we have to.
[Venireperson 9]: I know the law says it.
[Defense counsel]: I appreciate it. Hey, so you cannot presume him one hundred percent innocent?
[Venireperson 9]: Right.
[Defense counsel]: Thank you, [Venireperson 9]. I appreciate your honesty.
The following exchange then took place at the bench:
[Trial court]: What's the reason for No. 9?
[Defense counsel]: She could not presume him innocent.
[Trial court]: Juror No. 9, would you please come forward. I've talked to you-all about the presumption of innocence at the beginning of every trial. Every defendant is entitled to be presumed to be innocent. If I were to ask you to vote right now, how would you vote right now?
[Venireperson 9]: I would think for them to be here that they would—
[Trial court]: I'm having a hard time hearing from you.
[Venireperson 9]: I think by them being here I think they are guilty. I mean not guilty but—
[Trial court]: If I were to ask you to vote right now, right now based upon the evidence that you heard about the facts of this case, how would you vote?
[Venireperson 9]: I can't because I ain't heard anything. I don't know.
[Trial court]: No, I am asking you to vote right now.
[Venireperson 9]: Guilty or innocent?
[Trial Court]: Yeah, right now. Based upon what you know about the facts of this case.
[Venireperson 9]: Okay.
[Trial court]: Do you see my point?
[Venireperson 9]: Yeah.
[Trial court]: At the beginning of the trial this is why he is entitled to be presumed innocent because you don't know what the facts of the case are.
[Venireperson 9]: Right. But I'm just saying I think if a person is here that's why I said something happened. I don't know what it is.
[Trial court]: Well, I tell you what it is. There's an accusation.
[Venireperson 9]: Right.
[Trial court]: We know that. Everybody knows that. He's being accused of driving while intoxicated.
[Venireperson 9]: Right.
[Trial court]: But you don't know about the truth of the accusation. You don't know what the facts are, and that's why at the beginning of the trial he's entitled to be presumed innocent. Can you do that?
[Venireperson 9]: Yeah.
[Trial court]: You promise?
[Venireperson 9]: Yeah, I can do that.
[Trial court]: You can be seated.
Analysis
Appellant does not dispute that the prospective jurors were rehabilitated by the trial court's individual questioning, but instead argues that the trial court should have been precluded from further individual questioning of the prospective jurors after they indicated their alleged bias or influence pursuant to article 35.16(a)(10), which provides that once a veniremember states that he has an established conclusion regarding the defendant's guilt or innocence that will influence his verdict, "the juror shall be discharged without further interrogation by either party or the court." TEX.CODE CRIM. PROC. ANN. art. 35.16(a)(10).
Article 35.16(a)(10) is often used when a juror has prejudged a case based on information learned through pretrial publicity. See e.g., Williams v. State, No. AP-77,053, 2017 WL 4946865, at *10 (Tex. Crim. App. Nov. 1, 2017) (not designated for publication).
In support, appellant relies on Heiselbetz v. State, 906 S.W.2d 500 (Tex. Crim. App. 1995), in which defense counsel, tracking the statutory language of article 35.16(a)(10), asked the prospective juror if she had "formed a conclusion or opinion as to the guilt or innocence of the defendant." Heiselbetz, 906 S.W.3d at 509. When the prospective juror responded affirmatively, defense counsel asked her "[w]ould it take evidence to remove—to overcome that conclusion that you have in your mind?" Id. When the prospective juror against answered affirmatively, defense counsel objected, stating, "That's statutory, your Honor." Id. The trial court then further questioned the juror, asking whether her preconceptions would prejudice her as a juror. Id. at 509-10. She unequivocally stated that she would be fair and impartial. Id. On appeal, the defendant argued, as does appellant here, that it was improper for the court to question the prospective juror once her answers had, under article 35.16(a)(10), disqualified her as a matter of law. Id. at 510. The Court of Criminal Appeals held that further questioning by the trial court was permissible because, "after establishing that [the prospective juror] held a conclusion as to [appellant's] guilt or innocence, appellant abandoned the statutory language and failed to clearly establish whether that conclusion 'would influence [her] in [her] action in finding a verdict.'" Id. Absent a clear statement that the prospective juror's preconception as to the guilt or innocence would influence her verdict, the trial court was within its discretion to clarify the prospective juror's answers. Id. at 510, n.13.
Heiselbetz is not applicable. In Heiselbetz, the defense counsel, following the statutory language of article 35.16(a)(10), established that the prospective juror had "formed a conclusion or opinion as to the guilt or innocence of the defendant." Id. at 509. Here, neither veniremember 12, nor veniremember 9 stated that they had predetermined an opinion as to appellant's guilt or innocence as required by article 35.16(a)(10). At best, veniremember 12's answers indicate a potential bias against appellant based on his experience with alcohol, and veniremember 9's answers indicate a potential bias against application of the presumption of innocence. "Bias or prejudice in favor of or against the defendant" is a challenge for cause found in article 35.15(a)(9), and "bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely" is a challenge for cause found in article 35.16(c)(2). TEX. CODE CRIM. PROC. ANN. art. 35.16(a)(9), (c)(2) (West 2006). Neither of these applicable articles prohibit a trial court from further questioning a potential juror about bias like article 35.16(a)(10) does.
And, even if we were to conclude that appellant established the first requirement of article 35.16(a)(10)—that the prospective jurors had formed a conclusion or opinion as to his guilt or innocence—appellant, like the defendant in Heiselbetz, "abandoned the statutory language and failed to clearly establish whether that conclusion [about appellant's guilt or innocence] would influence [their] verdict." Heiselbetz, 906 S.W.2d at 510. As such, the trial court was within its discretion to further question the veniremembers. See id.
We overrule issues one and two.
FIFTH AMENDMENT
In issues three and four, appellant contends the trial court violated his privilege against self-incrimination under the Fifth Amendment to the United States Constitution and article I, § 10 of the Texas Constitution by (1) failing to consider the reasonableness of his Fifth-Amendment-privilege invocations, and (2) denying his invocation in front of the jury.
Standard of Review
We review a trial court's decision regarding a witness's invocation of his Fifth Amendment privilege for an abuse of discretion. See Walters v. State, 359 S.W.3d 212, 216-17 & n.17 (Tex. Crim. App. 2011). A trial court abuses its discretion when it acts arbitrarily or unreasonably. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). We uphold the trial court's ruling unless it is outside the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).
Background
During the defense's case, appellant took the stand to testify in his own defense. Appellant testified that on the night of the offense, he was not intoxicated. He was going to his girlfriend's house, but, because she lived near a railroad track, he usually had trouble sleeping there. The following exchange then took place:
[Defense counsel]: Did you have something in your pocket that night?
[Appellant]: Yes, I did.
[Defense counsel]: Did you have a prescription for what was in your pocket that night?
[Appellant]: No. It was something I shouldn't have.
[Defense counsel]: Okay. When—let me ask you. And I asked you this before. Why didn't you just go put it back in your apartment?
[Appellant]: Well, I didn't want to leave the scene of where the accident happened. I wanted to make sure I was there for everybody when the police would come and we can talk about it and make sure I was there for the other people because it was an accident. I started walking back towards my apartment complex for a minute, and then I decided to consume that—
[Defense counsel]: Okay.
[Appellant]: —thing.
[Defense counsel]: What's the purpose of that medication. Because I've advised you on your Fifth Amendment Right, right?
[Appellant]: It will knock you out.
[Defense counsel]: Okay. So it's for sleep or for relaxation?
[Appellant]: Yes.
[Defense counsel]: Okay. And I asked you—so you don't throw—you didn't put it back in your apartment because you didn't want them to think you were just taking off?
[Appellant]: Yeah. I started to turn the corner, and then I said forget it.
[Defense counsel]: Why didn't you just throw it in the bushes or in the grass?
[Appellant]: I didn't want a dog or a kid to get it.
[Defense counsel]: Okay. And did you think about that?
[Appellant]: Yes.
[Defense counsel]: So—
[Appellant]: I didn't want it laying around.
[Defense counsel]: What did you do with it?
[Appellant]: I ate it.
Appellant testified that the medication that he swallowed after the accident took effect, and that, while he was at the police station, he became intoxicated. The Prosecutor then cross-examined appellant, and the following exchange took place:
[Prosecutor]: So you're saying—on direct you stated that you had a pill in your pocket, correct?
[Appellant]: Yes.
[Prosecutor]: And that this pill was some kind of pill that was supposed to knock you out because you apparently had trouble sleeping at your girlfriend's house, correct?
[Appellant]: Yes.
[Prosecutor]: What kind of pill was it?
[Defense counsel]: Judge, at this point I'm instructing him under the Fifth Amendment—under his rights he can plead the Fifth Amendment unless the State offers him immunity for his answer.
[Trial Court]: Overruled.
[Appellant]: I plead the Fifth.
[Defense counsel]: I'm going to instruct—
[Trial court]: I'm sorry. Too many—What did you say?
[Defense counsel]: Go ahead and say it.
[Appellant]: I plead the Fifth.
[Trial court]: I'm going to instruct you to answer the question.
[Defense counsel]: Judge, for the record, I don't think that we can do that. I think we need independent counsel for immunity offered by the State of Texas not to prosecute him for admitting what he had.
[Trial court]: All right. Take the jurors out, please. Y'all can be seated. We are going to recess till tomorrow.
The next morning when trial resumed, appellant renewed his Fifth Amendment objection and both parties offered authorities in support of their positions. Outside the presence of the jury, the trial court had the court reporter read the last question to appellant:
[Court reporter]: What was the pill?
[Trial Court]: What was the pill? Mr. Gamble, I'm ordering you to answer the question. If you fail to answer the question, I'm going to hold you in contempt of court. The range of punishment which is one day to six months in jail and/or a fine of $1 to $2,000. So I'm instructing you now to either answer the question before the jury or be held in contempt of Court.
[Defense counsel]: For purposes of the record, Judge, the defense is going to object on the basis of the Fifth Amendment to the US Constitution and Article 1 Section 19 of the Texas Constitution. It's improper to compel the witness to answer a question that could place him in jeopardy for another offense other than this one.
[Trial court]: Your objection is noted and overruled.
The jury then returned to the courtroom, and the following exchange took place:
[Trial court]: Y'all can be seated. Court reporter, would you read back the last question to the witness by the prosecutor?
[Court reporter]: Question: What kind of pill was it?
[Trial court]: All right. Mr. Gamble, you may answer the question.
[Appellant]: I don't know what the pill was. Something that makes me tired.
Analysis
Appellant contends the trial court erred by compelling him to identify the type of pill he took because the testimony could have subjected him to additional charges. Appellant also claims that the trial court should have inquired into the reasonableness of appellant's Fifth Amendment invocation. The State responds that Appellant waived his privilege against self-incrimination by voluntarily testifying. We agree with the State. The Court of Criminal Appeals has addressed the issue, stating
When the defendant in a criminal case voluntarily takes the stand and testifies in his own behalf, he occupies the same position and is subject to the same rules of cross-examination as any other witness. He may be contradicted, impeached, made to give evidence against himself, cross-examined as to new matter, and treated in every respect as any other witness testifying in behalf of the defendant, except when there are overriding constitutional or statutory prohibitions; for example, where a statute forbids certain matters to be used against him, such as proof of his conviction on a former trial of the same case, or his failure to testify on a former trial, or a confession made while he was in jail without his having been first cautioned that it might be used against him.Guzmon v. State, 697 S.W.2d 404, 408 (Tex. Crim. App. 1985) (citations omitted).
"When a criminal defendant voluntarily takes the stand to testify in his own defense, he waives his privilege against self-incrimination." Ramirez v. State, 74 S.W.3d 152, 155 (Tex. App.—Amarillo 2002, pet. ref'd) (citing Nelson v. State, 765 S.W.2d 401, 403 (Tex. Crim. App. 1989)); see also Felder v. State, 848 S.W.2d 85, 99 (Tex. Crim. App. 1992) ("Once an appellant decides to testify at trial he opens himself up to questioning by the prosecutor on any subject matter which is relevant.").
Here, appellant testified that he took "something [he] shouldn't have" and for which he did not have a prescription. The evidence was relevant to the issue of intoxication because appellant claimed that he was not intoxicated until he took this pill. By voluntarily testifying about taking the pill, the State was entitled to question appellant about what type of pill it was. See e.g., Williams v. State, 116 S.W.3d 788, 791 (Tex. Crim. App. 2003) ("[I]t is also a rudimentary proposition 'that a defendant who takes the stand in his own behalf cannot then claim the privilege against cross-examination on matters reasonably related to the subject matter of his direct examination.'") (quoting Jenkins v. Anderson, 447 U.S. 231, 237, 100 S. Ct. 2124 (1980)).
We overrule issues three and four.
CONCLUSION
We affirm the trial court's judgment.
Sherry Radack
Chief Justice Panel consists of Chief Justice Radack and Justices Massengale and Brown. Do not publish. TEX. R. APP. 47.2(b).