Jose Zavala v. The State of Texas--Appeal from 226th Judicial District Court of Bexar County

No. 04-99-00888-CR
Jose ZAVALA,
Appellant
v.
The STATE of Texas,
Appellee
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 98-CR-2162B
Honorable Sid Harle, Judge Presiding

Opinion by: Phil Hardberger, Chief Justice

Sitting: Phil Hardberger, Chief Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: June 13, 2001

AFFIRMED

Jose Zavala appeals his capital murder conviction. In his sole issue, Zavala contends that the trial court erred in denying his challenges for cause as to two venire members. We overrule Zavala's issue and affirm the trial court's judgment.

Standard of Review

Article 35.16(c)(2) enables the defense to challenge a venire member for cause if the venire member has a bias or prejudice against any of the law applicable to the case. Tex. Code Crim. Proc. Ann. art. 35.16(c)(2) (Vernon Supp. 2001). "Bias against the law is [the] refusal to consider or apply the relevant law." Sadler v. State, 977 S.W.2d 140, 142 (Tex. Crim. App. 1998). If a trial court erroneously denies a challenge for cause, harm is shown if the record indicates that the appellant: "(1) used a peremptory challenge to remove the venire members, (2) exhausted his peremptory challenges, (3) requested and was denied additional peremptory challenges, and (4) identified two objectionable venire members who sat on the jury and on whom the appellant would have exercised peremptory challenges had he not exhausted his peremptory challenges to correct the trial court's erroneous denial of his challenges for cause." Johnson v. State, No. 1353-99, 2001 WL 293204, at *4 (Tex. Crim. App. Mar. 28, 2001).

In reviewing a trial court's ruling on a challenge for cause, we review the totality of the voir dire testimony to determine whether it supports the trial court's finding with respect to whether the prospective juror is able to follow the law as instructed. King v. State, 29 S.W.3d 556, 568 (Tex. Crim. App. 2000). We reverse the trial court only if a clear abuse of discretion is evident. Id. When the potential juror's answers are vacillating, unclear or contradictory, particular deference is accorded to the trial court's decision. Id. A trial court does not abuse its discretion in denying a challenge for cause if the venireperson is rehabilitated when further questioned by the prosecutor and the trial court judge. Westbrook v. State, 846 S.W.2d 155, 160 (Tex. App.--Fort Worth 1993, no pet.).

Discussion

In his sole point of error, Zavala contends that the trial court erred in denying his challenge for cause as to venire members 56 and 61 because they stated that they could not follow the law of parties where murder is committed in the course of another felony. (1) Zavala's complaint is based on the venire members' statements regarding whether they would find Zavala guilty if they believed he should have known something could have happened, as opposed to requiring the State to prove that Zavala should have anticipated what in fact happened. In response to defense counsel's questioning, the two venire members responded affirmatively when counsel asked whether they would find somebody guilty if they should have anticipated something could happen even if they did not find that he anticipated that it was going to happen.

Venire Member 56

After defense counsel questioned venire member 56, the prosecutor asked whether he would follow the law as instructed by the court, and the following exchange occurred:

Q. You understand what the law says?

A. Yes, sir.

Q. He's gone over with you, quite a bit, the test of should have anticipated. You understand that is the language that is in the law that is in front of you.

A. Yes, sir.

Q. And would you follow the law if you were so instructed by the Court and require the State to prove to you that all the crimes committed in the conspiracy, the defendant can be found guilty of those so long as he should have anticipated the commission of those crimes.

A. By should have, are you saying that he should have prior knowledge?

Q. No. If you recall, the only prior knowledge he needs to have is that they agree to carry out the first felony.

A. Yes, sir.

Q. And the law also goes on to state that he is guilty of all crimes he's committed even though he had no intent to commit it, so long as it was in furtherance of the original felony or conspiracy and one that he should have anticipated.

A. Okay.

Q. Okay? Is that the standard you would hold the State to in proving whether or not the defendant is guilty or not?

A. Yes, sir.

Based on this clarification, the trial court overruled the challenge for cause. Defense counsel then reinquired:

Q. Okay. All right. But again just so we're clear, even though you don't see that in there, you don't think that that - that's not the way you're interpreting this to read, correct? What you're saying is that's enough for you to find the defendant guilty, correct?

A. Yes.

Q. Okay. When I say this, I'm talking about the conspiracy charge, right?

A. Yes.

Defense counsel then reurged his objection, and the following exchange occurred between venire member 56 and the trial court:

THE COURT: Okay. All right. Let me just clarify, Mr. Tristan, on this. He's asking you about the conspiracy charge of guilt/innocence. You have read it, you understand it, and you could apply the law and not hold the defendant to any lesser standard of lesser burden of proof. You're going to make the State prove its case beyond a reasonable doubt on that conspiracy issue.

PROSPECTIVE JUROR: Yes, sir.

THE COURT: Do you have any questions about that? Is there anything you don't understand?

PROSPECTIVE JUROR: Well, I don't know if it's so much I understand. I want to make sure I understand the fact that it's up to the State to prove that the driver, and I'm saying driver -

THE COURT: That is the example. That's fine.

PROSPECTIVE JUROR: That the driver is just as guilty of murder if the shooter kills someone. And it's up to the State to prove that there was a murder and the driver is guilty because he was involved and that's a conspiracy.

THE COURT: Okay. What is your definition of involved?

PROSPECTIVE JUROR: Him and his friends were going to go - were going to rob this place or he was - he was part of the plan, okay. We'll rob this place. Maybe they didn't say, We're going to go shoot this guy, or maybe they didn't say, We're going to kill him. But we're going to go in there, we're going to rob this place, and I have a loaded gun. And if, you know, we're going to do this, yes, I believe that although the driver maybe didn't say, Yes, we're going to kill them, I think that if you find the shooter guilty, then the driver is equally as guilty because he was involved. Now, if that isn't what it says -

THE COURT: That's not what that says unless your definition of involved means that -

PROSPECTIVE JUROR: He should have known, yes. He should have known.

THE COURT: That's why I'm asking. What is your definition of involved, and does it correspond with that definition right there?

PROSPECTIVE JUROR: Yes, it does. I think that he should have been - Yes, it should have been anticipated. Yes.

THE COURT: And you're going to make the State prove that?

PROSPECTIVE JUROR: Yes, sir, I am.

THE COURT: Not just that he was there, not just that he was in the car, not just that there was some agreement. You're going to make them prove each and every element of that definition.

PROSPECTIVE JUROR: Yes, sir.

The trial court overruled the challenge for cause.

The venire member's exchanges with the prosecutor and the trial court judge rehabilitated him, showing that he could follow the law as instructed. Westbrook, 846 S.W.2d at 160. Even if we were to conclude that the venire member had not been completely rehabilitated, his responses would be considered "vacillating, unclear or contradictory," and under those circumstances, we accord particular deference to the trial court's ruling. King, 29 S.W.3d at 568. The trial court did not abuse its discretion in denying the challenge for cause as to venire member 56.

Venire Member 61

After defense counsel reurged his objection to venire member 61, the following exchange occurred:

THE COURT: Okay. Let me just ask you this, sir: I have listened to you. You have heard [the prosecutor's] example and [defense counsel's] example. Frankly [defense counsel's] example was a little different than [the prosecutor's] because I think you said on a couple of occasions if there is a death involved at any point then you are somehow or another going to hold the conspirators responsible regardless in every occasion where there is a death. Could you expand upon that before me? I didn't quite understand your answer.

PROSPECTIVE JUROR: If it was my instruction by the Court that the defendant is guilty of the same or lesser crime as the other party of the crime, if a death was - if a death occurred during that crime, and again I go with if I was instructed by the point of law that he is just as guilty, then I would have to go with he is guilty.

THE COURT: Okay. But again, I still don't understand because what you're saying is - let's take the death out of it.

PROSPECTIVE JUROR: Okay. Maybe I'm misunderstanding the law.

THE COURT: I think - I will let them inquire on this issue one more time because I think - I'm hearing you say any time there is a death involved, if they go in to commit one felony and somebody dies, then it's going to be anticipated or should have been anticipated every time because they could have died of a heart attack, they could have died from a pistol whipping, they could have died from a shooting. And you're saying any time there is a dead body your position is going to be it should have been anticipated. That is what [the prosecutor] is trying to tell you.

If they prove to you in a case that one felony was conspired about and the defendant should have anticipated the other felony might have occurred or would have occurred, then he is equally as liable. If you are saying that in every situation where there is a dead body it's automatically going to be should have anticipated, then that is not the law. So that's what I want him to inquire on, that was the issue I think [defense counsel] addressed, and we're going to put it to bed. Let's limit it to that.

BY [THE PROSECUTOR]:

Q. Could you follow the law that the Judge would give you and not automatically find somebody guilty every time there is a death involved?

A. That is what I understand the Judge just quoted. That's correct.

Q. And in the appropriate case you could find the defendant not guilty if you find that he or she should not have anticipated that a death would have occurred?

A. That is what the Judge just explained to me, that's correct.

Q. And would you follow that law?

A. That's correct.

Q. So there are cases where you would find a defendant not guilty, if the death is involved, if you found that the death should not have been anticipated?

A. That's correct.

Q. Okay.

Based on that exchange, the trial court overruled the challenge for cause but permitted defense counsel to reinquire, and the following exchange occurred:

Q. ... I'm saying if the second felony was in furtherance of the conspiracy, then it always should have been anticipated, right?

A. I think in this particular situation the way I am understanding everything that has been presented to me and the way the Judge explained it to me is without the possibility of foresight, it can't be anticipated.

Q. I don't guess I quite understand that answer, but let me ask you just one more time. Isn't it the case that if they entered into a conspiracy to commit one felony -

A. The Judge explained to me that is not necessarily the law, that all parties are just as guilty of the crime.

In response to the defense counsel's request, the trial court again clarified the law regarding conspiracy. After the trial court's explanation, defense counsel inquired:

Q. That's right. But what I'm asking you is would they have proved that by proving - if they proved that there was a conspiracy, that in furtherance of that conspiracy one of the coconspirators committed another felony, then will they have proved that that should have been anticipated by the other guy simply by virtue of the fact that he entered into the conspiracy?

A. No.

After reviewing the totality of the voir dire testimony of venire member 61, it appears that his earlier testimony leading to the challenge for cause was based on his misunderstanding of the law. After the law was clarified by the trial court and the prosecutor, the venire member demonstrated his ability to follow the law as instructed and, therefore, was rehabilitated. See Westbrook, 846 S.W.2d at 160. As a result, the trial court did not abuse its discretion in denying the challenge for cause as to venire member 61.

Conclusion

The trial court's judgment is affirmed.

PHIL HARDBERGER,

CHIEF JUSTICE

DO NOT PUBLISH

1. Although Zavala alludes to the sufficiency of the evidence in his point of error, his sufficiency argument is made in an effort to demonstrate harm from the denial of the challenges for cause; therefore, we do not separately address the sufficiency of the evidence to support the conviction.