Palmer, Gary Marshal v. The State of Texas--Appeal from 178th District Court of Harris County

Affirmed and Memorandum Opinion filed July 19, 2005

Affirmedand Memorandum Opinion filed July 19, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00044-CR

NO. 14-04-00045-CR

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GARY MARSHALL PALMER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 178th Judicial District Court

Harris County, Texas

Trial Court Cause Nos. 915,821 & 915,822

M E M O R A N D U M O P I N I O N

Appellant Gary Marshall Palmer was convicted by a jury in a single trial of aggravated sexual assault and robbery. The jury assessed punishment at thirty years= confinement for aggravated sexual assault and twenty years= confinement for robbery. The trial court sentenced appellant to thirty years= confinement. In one point of error, appellant contends the judge erroneously denied his challenge for cause of a veniremember. We affirm.

In a single point of error, appellant argues the trial court erred in not sustaining his challenge for cause to prospective juror Taylor. Appellant claims the denial of his challenge for cause to prospective juror Taylor was an abuse of discretion and should have been sustained because Taylor said she Aprobably would not be the best juror@ in this case, had been a victim of an offense similar in nature to appellant=s charged offense, and became teary-eyed when she discussed the traumatic event.

The trial court=s decision to deny appellant=s challenge for cause is subject to review under the abuse of discretion standard. Garcia v. State, 887 S.W.2d 846, 854 (Tex. Crim. App. 1994). We review the trial court=s ruling on a challenge for cause with Aconsiderable deference@ because the trial court is in the best position to evaluate the veniremember=s demeanor, tone of voice, and responses. See Newbury v. State, 135 S.W.3d 22, 32 (Tex. Crim. App. 2004); Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim. App. 2002); Colburn v. State, 966 S.W.2d 511, 517 (Tex. Crim. App. 1998); Harvey v. State, 97 S.W.3d 162, 165 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d).

A defendant may challenge a potential juror for cause when the potential juror has demonstrated either a bias or prejudice against the defendant as a person or against some phase of the law upon which the defendant is entitled to rely. Mooney v. State, 817 S.W.2d 693, 700 (Tex. Crim. App. 1991); see Tex. Code Crim. Proc. Ann. art. 35.16(a)(9), (c)(2) (Vernon 1989 & Supp. 2004). Bias is Aan inclination toward one side of an issue rather than to the other ... [which] leads to the natural inference that [a juror] will not or did not act with impartiality.@ Anderson v. State, 633 S.W.2d 851, 853 (Tex. Crim. App. 1982). Prejudice is simply defined as Aprejudgment.@ Id.

When a prospective juror is shown to be biased or prejudiced as a matter of law, the juror must be excused when challenged, even if the juror states he can set aside the bias or prejudice and be a fair and impartial juror. Clark v. State, 717 S.W.2d 910, 917 (Tex. Crim. App. 1986). However, when bias or prejudice is not established as a matter of law, the trial court has discretion to determine whether bias or prejudice actually exists to such a degree that a prospective juror is disqualified and that the challenge for cause should be sustained. Anderson , 633 S.W.2d at 853B54; see Newbury, 135 S.W.3d at 35. AThe key to the analysis of the propriety of all rulings upon challenges for cause is not the use or lack of use of a single word but the import of the voir dire of the veniremen taken as a whole.@ Cordova v. State, 733 S.W.2d 175, 179 (Tex. Crim. App. 1987) (quoting Barrow v. State, 688 S.W.2d 860, 863 fn.1 (Tex. Crim. App. 1985).

During the voir dire examination, prospective juror Taylor said she had a personal issue she wished to disclose. Taylor=s voir dire is as follows:

 Juror: Um, I came home one day and there was a guy in my house. He was in the closet. And he came out, he had a stocking on his head and a gun. And I pushed at him and he knocked me down on the bed. My daughter was behind me. She ran out the door. She was near the door. He jumped up and ran out of one of the bedrooms.

 The Court: How long ago was this?

 Juror: It=s been, um, about twenty years, I guess.

 The Court: Do you think you could set that personal experience aside and be a fair and impartial juror in this trial?

 Juror: Yeah, I think so.

 The Court: You promise us you will?

 Juror: Yeah, I guess.

 The Court: You understand it would be unfair to hold that against Mr. Palmer what happened to you twenty years ago?

 Juror: I don=t think I -- no, I wouldn=t be able to hold it.[1]

 The Court: Okay. Any questions?

 Prosecution: No.

 Defense: Yes, ma=am, I do. I know that=s deep-rooted, that emotional event for you. Happened twenty years ago?

 Juror: Yes, sir.

 Defense: You still remember it?

 Juror: Oh, yeah.

 Defense: It still brings tears to your eyes right now, doesn=t it?

 Juror: Yes

 Defense: See how emotional the impact of that is, ma=am? On a case like a DWI case, you=d be an excellent juror, but on a case of something of such nature that=s so close to your emotions, can you see why this is probably not the type of case -- because we don=t want to bring those memories up, like it=s being brought up to you now. We don=t want to bring that up. Can you understand that in a case of this nature, you=re probably just not the best type of juror? Being honest with the defendant, you probably would not be the best juror; am I correct?

 Juror: Probably not.

 Defense: See, you=ve got tears coming to your eyes right now. We don=t want to see that. But the Judge doesn=t care and the prosecutor doesn=t care, but on a case of this nature, you probably would not be the best juror. Correct ma=am?

 Juror: You=re probably right.

 Prosecution: Well --

 Defense: That=s all the questions I have.

 Juror: I=m sorry.

 The Court: You can be seated.

 Defense: Thank you ma=am. Judge we move she be struck for cause.

 The Court: Denied.[2]

In support of his contention, appellant cites Holloway v. State, arguing the testimony is similar to the instant case and its holding should control. See 666 S.W.2d 104, 106B08 (Tex. Crim. App. 1984) (finding trial court erred by not granting appellant=s challenge for cause because the record revealed the prospective juror could not have been fair and impartial). In Holloway, the prospective juror=s house had recently been burglarized and she was not sure how that personal experience would affect her as a juror. Id. at 106. She stated that because of her experience: (1) she didn=t know whether she could presume the defendant was innocent; (2) she might find the defendant guilty because of what the man who burglarized her house did; and (3) she might require less evidence from the State than required to convict. See id. at 106B08. The instant case is distinguishable from Holloway.

The prospective juror=s house inHolloway had recently been burglarized, while Taylor=s experience occurred twenty years ago. Appellant emphasizes the fact that Taylor was emotional during the questioning and her testimony stating she would probably not be the best juror in the case. However, the mere fact that Taylor believed she would not be the best juror is not a sufficient basis for disqualification. Unlike Holloway, Appellant=s cross-examination of Taylor did not explore whether Taylor would presume appellant was innocent, whether she would find appellant guilty because of what happened twenty years ago, or whether she might require less evidence from the State than that required by the beyond a reasonable doubt standard. See Curry v. State, 910 S.W.2d 490, 493 (Tex. Crim. App. 1995) (finding the trial court did not err in denying defendant=s challenge for cause based on veniremember=s conclusion about defendant=s guilt where no evidence was adduced from the veniremember Athat his conclusion would have affected his verdict@). With regard to Taylor=s emotional demeanor, the trial judge was in the best position to evaluate her demeanor and responses. See Colburn, 966 S.W.2d at 517. Furthermore, Taylor stated she could set her personal experience aside and be a fair and impartial juror.

After examining the entire voir dire examination of Taylor, we conclude that no bias or prejudice has been established as a matter of law, and we hold the trial court did not abuse its discretion in denying defense counsel=s challenge for cause. See Cordova, 733 S.W.2d at 179B89. Appellant=s sole point of error is overruled.

The judgment of the trial court is affirmed.

/s/ John S. Anderson

Justice

Judgment rendered and Opinion filed July 19, 2005.

Panel consists of Justices Yates, Anderson, and Hudson.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] Given the ambiguous nature of this answer, we must defer its meaning to the trial judge. See Cordova, 733 S.W.2d at 183; see also Colburn, 966 S.W.2d at 517 (stating appellate courts should not second guess the trial court=s rulings on challenges for cause where veniremember=s responses are Avacillating, unclear, or contradictory@).

[2] Initially, the State argues this issue is not preserved because appellant never mentioned to the trial court any specific ground upon which his challenge for cause was based and never stated the grounds he now relies upon for appeal. See Tex. Code Crim. Proc. Ann. art. 35.16(a)(9), (c)(2) (Vernon 1989 & Supp. 2004) (stating defendant may challenge a juror for cause if juror has bias or prejudice against the defendant or against any of the law applicable to the case upon which the defense is entitled to rely). While it is true the words bias and prejudice were not used in appellant=s challenge for cause, the grounds for appellant=s challenge were apparent from the context of the examination, and the trial court was aware of the specific grounds underlying the challenge. See Tex. R. App. P. 33.1(a)(1)(A). We hold appellant preserved error for our review. See Harvey, 97 S.W.3d at 165 (finding appellant preserved error for review when trial court overruled appellant=s challenge for cause before appellant could even make the challenge or specify the grounds).