Vaughn Birdwell v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-96-032-CR

VAUGHN BIRDWELL,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 95-324-C

O P I N I O N

A jury convicted Vaughn Birdwell of brutally stabbing Irene Mitchell to death and sentenced him to life in prison. Birdwell now appeals his conviction claiming he was denied his constitutional right to be tried by a jury of twelve peers. He contends a juror, who had felony convictions, should have been disqualified. Additionally, Birdwell contends that he did not receive a fair trial when the trial court denied his motion for mistrial following an outburst from a member of the audience. Because we find that Birdwell received a fair trial by a jury of twelve qualified citizens, we affirm his conviction.

In his first point of error, Birdwell claims that previous felony convictions disqualified one of the twelve jurors. He disputes the constitutionality of articles 42.12 and 44.46 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. arts. 42.12, 44.46 (Vernon Supp. 1997). Article 42.12, section 20, provides that a judge may set aside the verdict against a criminal defendant and dismiss the charges that had been made against him once he successfully completes a certain portion of his sentence of community supervision. Id. art. 42.12, 20(a). Article 44.46 requires a showing of significant harm by service of the disqualified juror to reverse a criminal conviction when the disqualification was not discovered until after the verdict was entered. Id. art. 44.46.

Juror "J.W." failed to disclose his felony convictions on his juror information card and failed to respond to questions about his involvement in a prosecution. Subsequently, the trial court impaneled J.W. as one of the twelve jurors in this case. However, the trial judge in J.W.'s underlying felony trial had entered an order under article 42.12, section 20, to remove his disability prior to being called to jury duty.

Birdwell relies upon the Fort Worth Court of Appeals to supply the backbone of his argument that article 42.12, section 20, is unconstitutional. In that case, the court, sitting in its civil capacity, held that only the executive branch has the constitutional authority to restore a convicted felon's civil rights taken away as a result of a conviction. R.R.E. v. Glenn, 884 S.W.2d 189, 192-93 (Tex. App. Fort Worth 1994, writ denied). Thus, according to that court, the Legislature cannot enact any statutes which permit either itself or the judiciary to restore a convicted felon's civil rights. Id. at 193.

We have already rejected the holding in Glenn and found article 42.12, section 20, constitutional. Hoffman v. State, 922 S.W.2d 663, 667-69 (Tex. App. Waco 1996, pet. ref'd). Although Birdwell acknowledges Hoffman, he alleges we failed to consider other statutory provisions which are designed to exclude convicted felons from serving on juries, the basic rules of constitutional construction, and the meaning of "conviction." Because we believe Hoffman to be correctly decided, we decline to reconsider its holding.

Article 42.12, section 20, provides a mechanism to release a convicted person of all legal disabilities upon successful completion of community supervision. Wolfe v. State, 917 S.W.2d 270, 277 (Tex. Crim. App. 1996). The release from legal disabilities occurs after the trial judge enters an order of discharge and dismisses the case. Id. Thus, a juror who has completed community supervision, had his conviction set aside, or had the case dismissed is eligible to serve as a juror. Walker v. State, 645 S.W.2d 294, 295 (Tex. Crim. App. 1983); Payton v. State, 572 S.W.2d 677, 679 (Tex. Crim. App. 1978): Smith v. State, 859 S.W.2d 463, 464 (Tex. App. Fort Worth 1993, pet. ref'd); Day v. State, 784 S.W.2d 955, 956 (Tex. App. Fort Worth 1990, no pet.). Because J.W. qualified as a juror in this case, there can be no harm to Birdwell. As such, we do not address the harm needed to reverse a criminal conviction under article 44.46. We overrule Birdwell's first point of error.

In his second point of error, Birdwell complains the trial court denied his right to a fair trial when it overruled his request for a mistrial following an outburst from a member of the audience. While the medical examiner testified regarding the stab wounds inflicted upon Mitchell, Aurora Victoria Shinehouer jumped from her seat, went to the rail separating the audience from counsels' tables, and screamed vulgarities at Birdwell. Following this outburst, the trial judge instructed the jury that they were not to consider this outburst for any reason. After the judge removed the jury, he warned the audience that further outbursts would not be tolerated. At this point, Birdwell made a motion for mistrial claiming that the outburst created an emotionally charged atmosphere. The judge overruled his motion and when the jury returned, again admonished them not to consider the outburst for any reason.

Inappropriate comments by members of the audience do not result in error and certainly do not result in reversible error unless and until Birdwell shows a reasonable probability that such outbursts affected or interfered with the jury's verdict. Landry v. State, 706 S.W.2d 105, 112 (Tex. Crim. App. 1985); Boyd v. State, 774 S.W.2d 37, 42 (Tex. App. Beaumont 1989, pet. ref'd). Usually, any potential injury caused by the spectator's outbursts can be cured by the trial court's unequivocal and dogmatic instruction to the jury. Boyd, 774 S.W.2d at 42; Nation v. State, 762 S.W.2d 290, 292 (Tex. App. Beaumont 1988, no pet.). Because curative instructions are presumed efficacious to withdraw from jury consideration almost any evidence or argument which is objectionable, trial conditions must be extreme before a mistrial is warranted under Texas law. Bauder v. State, 921 S.W.2d 696, 700 (Tex. Crim. App. 1996). Injury to a defendant is measured on a case-by-case basis. Landry, 706 S.W.2d at 112.

The judge immediately instructed the jury that it could not consider this profane outburst for any reason. After the jury returned from its brief recess, the judge again instructed it not to consider the outburst. The only reference to this outburst came from Birdwell's trial counsel when he said "there is lots of emotions on each side, as you can tell"; the State did not make Shinehouer's outburst any part of its case. Even though this outburst occurred in the presence of the jury, we believe after a review of the whole record that the judge's immediate instructions cured any potential harm. Bauder, 921 S.W.2d at 700. Therefore, we find that Birdwell failed to show with a reasonable probability that the outburst affected or interfered with the jury's verdict. Landry, 706 S.W.2d at 112; Boyd, 774 S.W.2d at 42. We overrule his second point of error.

We affirm Birdwell's conviction.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed January 22, 1997.

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