Jose Luis Sanchez, Jr. v. The State of Texas--Appeal from 54th District Court of McLennan County

NO. 10-89-251-CR

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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JOSE LUIS SANCHEZ,

Appellant

v.

THE STATE OF TEXAS,

Appellee

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From the 54th Judicial District Court

McLennan County, Texas

Trial Court # 89-299-C

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O P I N I O N

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Appellant was indicted by a McLennan County grand jury for the felony offense of aggravated possession of a controlled substance. See Tex. Health & Safety Code Ann. 481.112(d)(3) (Vernon 1991). He subsequently pleaded guilty and requested a jury trial on punishment. The jury assessed punishment at fifty years in prison and a $50,000 fine. We will affirm.

Appellant's sole complaint is that the court erred when it denied his motion to strike juror number 11 for cause. During voir dire Appellant challenged juror 11 for cause and the court overruled his challenge. At the close of voir dire Appellant renewed his challenge for cause as follows:

MR. LAYMAN: Comes now [Appellant] after the close of voir dire examination and prior to the submission of [Appellant's] peremptory challenges and renews the challenge for cause to juror number 11 . . . who was the victim or had a relative, half brother, that was a victim of a drug crime. I believe he said his half brother's life had been ruined by drugs, and he had spent several thousands of dollars in an attempt to help his brother. And that I do not believe that he has rehabilitated himself nor is he rehabilitatable. I don't think that he can be rehabilitated once he has expressed a bias or prejudice against my client or against the offense charged.

I have been forced to use one of my peremptory challenges against [Juror 11], which meant that I expended my tenth and final challenge on this juror and I was unable to use that challenge on . . . juror number 13, who I found objectionable for a variety of reasons, such as her race, age, background, and a general feeling of relationship between myself and her during the voir dire examination.

THE COURT: State have anything?

MR. GARTNER: No, Your Honor. We would say, Your Honor, we think he's qualified.

MR. STROTHER: The potential juror stated that he could consider the entire range of punishment, that he wouldn't let any preconceived --

THE COURT: I overrule the objection.

MR. LAYMAN: Thank you, Your Honor. At this time we submit our peremptory challenges to the Court, Your Honor.

THE COURT: All right.

Appellant was forced to used a peremptory challenge to strike juror 11 from the jury because he had already challenged the juror for cause. However, he never requested any additional peremptory challenges to offset his use of a peremptory challenge in place of his overruled challenge for cause. Appellant did not show that the court would have denied additional peremptory challenges if he had asked for them. Because Appellant did not ask for additional peremptory challenges and failed to show that the court would not have granted additional peremptory challenges, nothing is preserved for review. See Cantrell v. State, 731 S.W.2d 84, 95 (Tex. Crim. App. 1987).

Generally, a venireman in a "criminal case is not subject to exclusion for cause if he is able to set aside his bias or prejudice for purposes of trial and fairly to determine the issues submitted for his consideration, based upon the evidence and having due regard for the entire lawful range of punishment." Hernandez v. State, 757 S.W.2d 744, 750 (Tex. Crim. App. 1988) (emphasis added). Therefore, even if Appellant had preserved his point, we find from the record that the State effectively "rehabilitated" juror 11 during voir dire by the following:

MR. GARTNER: But let me ask you this. On this case given the fact that this defendant has pled guilty to a drug offense, and I think the law says you're entitled to not like murderers or [burglars] or drug dealers. The question is could you nevertheless consider both the minimum and the maximum range of punishment in this case, and be a fair juror?

[JUROR 11]: I personally, yes, would try to do that.

MR. GARTNER: Do you think you could do that?

[JUROR 11]: Yes.

MR. GARTNER: Okay. We have nothing further, Your Honor.

MR. LAYMAN: Do you think that you could do that, or do you think your feeling might affect you verdict in this case?

[JUROR 11]: My feelings are very strong, but I don't want to sit here and say that I can't be a fair person to someone.

THE COURT: Are you saying then that they would not affect your verdict or they would affect your verdict?

[JUROR 11]: No. I wouldn't go, I guess, and just say it ought to be maxed out, or that it ought to be less. I mean, I think that's what I've been being asked.

THE COURT: Are you saying that you can be open minded, and consider the entire range of punishment, and have no predisposition?

[JUROR 11]: Yes, sir.

THE COURT: All right. Overruled. Once more, . . . you can go ahead have a seat.

Next juror in.

Go ahead and have a seat.

Juror 11 clearly demonstrated that he could set aside his bias or prejudice and assess punishment within the lawful range based upon the evidence. We overrule Appellant's point of error and affirm the judgment.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas

Justice Cummings and

Justice Vance

Affirmed

Opinion delivered and filed February 21, 1991

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