Opinion
No. 04-02-00407-CR.
Delivered and Filed: November 5, 2003. DO NOT PUBLISH.
Appeal From the 399th Judicial District Court, Bexar County, Texas, Trial Court No. 2001-CR-2197-B, Honorable Juanita A. Vasquez-Gardner, Judge Presiding. AFFIRMED.
Sitting: Alma L. LOPEZ, Chief Justice, Sarah B. DUNCAN, Justice, Phylis J. SPEEDLIN, Justice. Dissenting opinion by: Alma L. López, Chief Justice.
MEMORANDUM OPINION
Bobby Hartfield, Jr. appeals the judgment convicting him upon a jury's verdict of aggravated robbery with a deadly weapon and sentencing him to sixty years in prison. Hartfield contends the trial court abused its discretion in denying his challenge for cause to Venireperson 5, because he indicated he would not honor Hartfield's Fifth Amendment right against self-incrimination, his right to have the State bear the burden of proving its case beyond a reasonable doubt, and his Sixth Amendment right to effective counsel. We disagree and affirm the trial court's judgment. A member of the venire is subject to a challenge for cause if he demonstrates he is biased or prejudiced against the law applicable to the case. See Tex. Code Crim. Proc. Ann. art. 35.16(c)(2) (Vernon Supp. 2002). "Bias against the law is refusal to consider or apply the relevant law." Sadler v. State, 977 S.W.2d 140, 142 (Tex.Crim.App. 1998). "For challenges based on a veniremember's alleged bias against the law, `we must determine whether the veniremember's beliefs would prevent or substantially impair him from following the law as set out in the trial court's instructions and as required by the juror's oath.'" Swearingen v. State, 101 S.W.3d 89, 99 (Tex.Crim.App. 2003) (quoting Lagrone v. State, 942 S.W.2d 602, 616 (Tex.Crim.App. 1997), cert. denied, 522 U.S. 917 (1997)). We review the trial court's denial of a challenge for cause under an abuse of discretion standard "in light of the venireperson's voir dire as a whole. 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 hear the person." Swearingen, 101 S.W.3d at 99. To preserve a challenge for cause, the challenging party must lodge a specific objection at trial. See Knox v. State, 744 S.W.2d 53, 61-62 (Tex.Crim.App. 1987), cert. denied, 486 U.S. 1061 (1988). A challenge on one ground will not preserve a challenge on another ground. See id. Before voir dire, the court instructed the jury regarding the presumption of innocence, the State's burden to prove its case beyond a reasonable doubt, and the defendant's right to remain silent, so that the jury "must not and cannot hold the fact that a person doesn't testify against them." During their general remarks, the court and the attorneys also discussed these constitutional rights as well as the elements of the offense and the range of punishment. Hartfield's attorney then asked whether anyone would hold it against Hartfield if he chose not to testify. The following colloquy ensued between Hartfield's attorney and Venireperson 5:
Venireperson 5: I would think that it would be incredibly weak for a person not to be able to take the stand and tell his or her side of the story to convince the jury of his guilt or innocence.
Defense Counsel: Okay. So —
Venireperson 5: I wouldn't hold it against him but I think it would be incredibly weak upon that side of the — proceedings.
Defense Counsel: How — how do you prove a negative, though? How do you prove that he didn't do something?
Venireperson 5: Tell your story.
Defense Counsel: Okay. And what if your story is a story that I stayed at home and played Nintendo or watched cable TV.
Venireperson 5: Well, you still told your story.
Defense Counsel: Okay. So, I mean, honestly, are you — can you really honestly tell me that if you were a juror in a case and the defense put on their defense, the defendant did not speak that you really wouldn't hold it against him?
Venireperson 5: I would think that — I'm saying that I think it would be weak.
Defense Counsel: You said incredibly weak.
Venireperson 5: Incredibly weak. Yeah, I think it would be weak. I think it would be weak on the attorney's part and the — the — the accused's part.
Defense Counsel: Okay. But —
Venireperson 5: I would think they didn't do their job correctly.
Defense Counsel: Okay. But I mean, seems to me honestly what you're saying is you would hold it against him.
Venireperson 5: I wouldn't hold it against him, I'm just saying I think it would be — somebody didn't do their job correctly.
Defense Counsel: Okay. And why is that?
Venireperson 5: Because you weren't prepared.
Defense Counsel: Okay.
Venireperson 5: To show guilt or innocence.
Defense Counsel: Right. I wasn't — so as a defense counsel they would not be prepared to — to move the burden one way or the other?
Venireperson 5: Correct.
Defense Counsel: Well, so would you — can you follow the law that says defense has zero burden, absolutely no burden whatsoever.
Venireperson 5: Can I follow that law? Yeah, I can follow the law, I'm just giving you my opinion.
Defense Counsel: I'm hearing it.
Venireperson 5: I'm just giving you my opinion.
Defense Counsel: I want to hear the full opinion, I don't want to hear half of it.
Venireperson 5: I'm giving it to you.
Defense Counsel: Okay.
Venireperson 5: I just think that I would think that a person should stand up and give his or her point of the story.
Defense Counsel: A person should is a defendant?
Venireperson 5: Right. Right.
Defense Counsel: And you're telling me, though, with a straight face that you would not hold that against me or my client if that didn't occur.
Venireperson 5: I wouldn't hold it against him. I'm giving you my opinion.
Defense Counsel: I hear that. Okay. Well, we'll move on, we'll get back to that.
Venireperson 5: You know, from all the conversation I have the feeling you're not going to have him get on the stand and that to me shows a lack of confidence in your case to be successful.
Defense Counsel: Or it may be an over abundance of confidence in the lack of the State's case.
Venireperson 5: That's your perception, mine is lack of confidence.
Defense Counsel: I understand.The following conversation occurred between Venireperson 5 and the State's attorney:
State's Attorney: You had some comments also about whether or not someone testified and would you be able to follow the law which says that if the defendant [does not] testify that you will not hold that as a circumstance against him?
Venireperson 5: Sure.
State's Attorney: Okay. And you can kind of understand how — since we have to prove it and, like the judge said, maybe in a hypothetical case the State's case is so weak that there would be no reason for the defense to put on anything?
Venireperson 5: No. I understand the purpose. I don't have to agree with it, but I understand it.
State's Attorney: You're right you don't have to agree with it.
Venireperson 5: I don't have to agree with it, but I understand it.
State's Attorney: But can you follow the law?
Venireperson 5: I can follow the law, but I don't agree with it.Subsequently, Hartfield's attorney had the following conversation with Venireperson 5:
Defense Counsel: [W]e obviously spoke a lot earlier and I guess this is — I mean, this is the point of the trial where we get — the only time we get to talk face-to-face and I've got a job to do, they've got a job to do and if you were a juror in this case you would too. And I'll just be blunt with you, I don't think that you honestly cannot hold it against my client if he doesn't testify.
State's Attorney: I'm going to object. First of all, I'm going to object to that line of questioning whether — I mean, I think he needs to ask the juror whether or not he can, you know, consider — whether he cannot do it or whether, but not — I don't think it's proper for defense counsel to interject his own feelings into his questioning of the juror.
The Court: That's overruled.
Venireperson 5: I'm a very black and white type of person.
Defense Counsel: Uh-huh.
Venireperson 5: There's not a lot of gray in my lifestyle or my personality. I can be fair to anybody.
Defense Counsel: Okay.
Venireperson 5: But there's no — there's no gray area. And that's why when I answered that question I would want to have somebody — I think people should speak for themselves and if they don't, to me — and I understand the law; in other words, I understand the law and like I said earlier, I — I can accept the law and agree with it but I don't have to like it.
Defense Counsel: Sure.
Venireperson 5: But — and I can be fair and I can do what I'm supposed to do fairly, but it doesn't mean I have to agree with it. And when you're talking about somebody if they want to inflict bodily harm on somebody, then I think that person has the responsibility to speak up.The State's attorney then questioned Venireperson 5 as follows:
State's Attorney: You said you understand the law?
Venireperson 5: I understand what you were trying to say earlier.
State's Attorney: Can you — if you were selected on the jury will you not hold it against the Defendant if he doesn't take the stand?
Venireperson 5: I can do that.
State's Attorney: And just consider the evidence that you hear in this case alone and not say I wonder what he would have said or I wonder why he didn't take the stand, consider in your deliberations only the evidence that you do hear in this case?
Venireperson 5: I can do that. I don't have to agree with it, but I can do that.
State's Attorney: And you will follow the law.
Venireperson 5: Sure. I can follow the law and I can agree with the law, I don't have to agree with it personally, but that doesn't mean anything. You know, it doesn't mean anything. I mean, I can — I mean, I'm a responsible person and I can do what's — what I'm supposed to do correctly.Following this individual examination of Venireperson 5, Hartfield's attorney presented a challenge for cause to Venireperson 5 because "he would hold it against [Hartfield] if he didn't testify. He says [Hartfield] has . . . a responsibility to speak up." After the State responded, the trial court denied Hartfield's challenge for cause. As demonstrated by the foregoing excerpts, the sole basis for Hartfield's challenge to Venireperson 5 for cause was whether he would honor Hartfield's right not to testify; accordingly, the other two bases he asserts on appeal were waived. See Knox, 744 S.W.2d at 61-62. The foregoing excerpt also makes it clear that Hartfield's allegation that Venireperson 5 would hold it against Hartfield that he chose not to testify is without merit. When taken as a whole, Venireperson 5 was unequivocal in stating that, although he believed a defendant should "tell his story," he would follow the law and not hold it against Hartfield if he did not testify. See Brown v. State, 913 S.W.2d 577, 580 (Tex.Crim.App. 1996) ("nothing is left to the discretion of the trial court when the venireperson is unequivocal as to their ability to follow the law. If they testify unequivocally that they can follow the law despite personal prejudices, the trial court abuses its discretion in allowing a challenge for cause on that basis"). We therefore affirm the trial court's judgment.
As the majority accurately states, the test in determining whether a veniremember is biased against the law is whether the "veniremember's beliefs would prevent or substantially impair him from following the law as set out in the trial court's instructions and as required by the juror's oath." Swearingen v. State, 101 S.W.3d 89, 99 (Tex.Crim.App. 2003). After reviewing the voir dire examination of Venireperson 5, the majority concludes, "Venireperson 5 was unequivocal in stating that, although he believed a defendant should `tell his story,' he would follow the law and not hold it against Hartfield if he did not testify." I disagree that Venireperson 5 was unequivocal. Venireperson 5 repeatedly stated that he disagreed with the law, that Hartfield should tell his story, and that Hartfield's failure to testify would indicate a weakness, an inability to show guilt or innocence, or a lack of confidence in his case being successful. This attitude toward the effect on Hartfield's case if Hartfield failed to testify is not sufficiently overcome by Venireperson 5's bald assertion that he could follow the law. Venireperson 5's ability to follow the law is clearly impaired by his expressed beliefs and attitude toward the law. Because I believe the record only supports the conclusion that Venireperson 5's beliefs would substantially impair him from following the law, I respectfully dissent.