State of Texas v. Wayne Ray Frederick--Appeal from 220th District Court of Hamilton County

IN THE

TENTH COURT OF APPEALS

No. 10-01-151-CR

THE STATE OF TEXAS,

Appellant

v.

WAYNE RAY FREDERICK,

Appellee

From the 220th District Court

Hamilton County, Texas

Trial Court # 00-03-07082

O P I N I O N

A jury found Wayne Frederick guilty of aggravated sexual assault of a child. The trial court granted Frederick a new trial after determining that a juror withheld material information during voir dire. In its sole point of error, the State argues that the trial court erred in granting a new trial because the information withheld by the juror was immaterial and Frederick s counsel was not diligent in pursuing the information needed to use his peremptory strikes.

Background Facts

During voir dire the prosecutor asked the following question: Do any of you know anyone who is or was a victim of sexual abuse? At least eight venire persons responded to this question and responded to follow-up questions from the prosecutor. Montica Cavett did not respond to the question and was selected to serve on the jury. Following the verdict, Frederick moved for a new trial on the ground that one or more jurors withheld material information during voir dire. // The trial court conducted a hearing on Frederick s motion for a new trial. Cavett testified that she personally knows at least two children who were victims of sexual abuse, one of whom is her niece. Additionally, her husband s brother was charged with sexually abusing his step-daughter (whom Cavett also knew). Cavett further stated that she knew abused children from her time spent as a house parent at a youth ranch. Cavett explained that she did not respond to the prosecutor s question because she was a fair person capable of seeing both sides.

Standard of Review

The granting or denying of a new trial lies within the sound discretion of the trial court. See State v. Gonzalez, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993); Johnson v. State, 913 S.W.2d 736, 736-37 (Tex. App. Waco 1996, no pet.). The standard of review is abuse of discretion. Id. As long as the trial court s ruling was within the zone of reasonable disagreement there is no abuse of discretion. See Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). We therefore examine the record to determine whether the trial court granted the new trial without reference to any guiding rules or principles or, in other words, whether the act was arbitrary or unreasonable. See Montgomery, 810 S.W.2d at 380.

Applicable Law

The voir dire process is designed to ensure, to the fullest extent possible, that an intelligent, alert, disinterested and impartial jury will perform the duty assigned to it. Franklin v. State, 12 S.W.3d 473, 477 (Tex. Crim. App. 2000) (quoting Salazar v. State, 562 S.W.2d 480, 482 (Tex. Crim. App. [Panel Op.] 1978)). Counsel for the State and the defendant have the right to question the jury to expose any interest or partiality in order to use peremptory strikes intelligently. Id. (citing Florio v. State, 568 S.W.2d 132, 133 (Tex. Crim. App. 1978). Thus, when a juror withholds material information, the parties use of challenges and peremptory strikes is necessarily hampered. Id. at 477-78.

When a partial, biased, or prejudiced juror is selected without fault or lack of diligence on the part of defense counsel, good ground exists for a new trial. See Franklin, 12 S.W.3d at 478; Von January v. State, 576 S.W.2d 43, 45 (Tex. Crim. App. 1978). The fact that a juror states that his withholding of information did not affect his verdict is not dispositive of the issue where the information is material and therefore likely to affect the verdict. See Franklin, 12 S.W.3d at 478; Salazar, 562 S.W.2d at 482.

Analysis

Defendant s right to rely on the State s questions during voir dire

The State argues that it is the obligation of defense counsel to ask specific questions to develop an area of concern raised by the prosecution. See Gonzales v. State, 3 S.W.3d 915, 917 (Tex. Crim. App. 1999) (en banc); Fry v. State, 915 S.W.2d 554, 562 (Tex. App. Houston [14th Dist.] 1995, no pet.). Such cases are readily distinguishable because those cases, requiring the defense counsel to ask the specific questions, rely on the fact that 1) a proper question was never asked by either side; or 2) the information withheld was not material. See Armstrong v. State, 897 S.W.2d 361, 364 n.1 (Tex. Crim. App. 1995) ( neither the court nor the prosecutor asked the jury panel the necessary question ). Gonzales, 3 S.W.3d at 917 (no error where counsel failed to ask specific question in questionnaire). Fry, 915 S.W.2d at 562 (juror never asked to respond to the precise question complained of on appeal); Butler v. State, 990 S.W.2d 298, 303 (Tex. App. Texarkana 1999, no pet.) (same); Santacruz v. State, 963 S.W.2d 194, 197 (Tex. App. Amarillo 1998, pet. ref d) (withheld information not material or suggesting bias).

More importantly, the Court of Criminal Appeals has held that a defendant has the right to rely on questions asked by the State during voir dire. See Armstrong, 897 S.W.2d at 364 n.1; see also Ruiz v. State, 747 S.W.2d 535, 537 (Tex. App. San Antonio 1988, pet. ref d) (appellant entitled to rely on juror s answer to question posed by the State). Accordingly, we find no lack of diligence on the part of Frederick s defense counsel in relying on the prosecutor s specific question. See Franklin, 12 S.W.3d at 478; Von January, 576 S.W.2d at 45 (holding that when a biased juror is selected, absent a lack of diligence by defense counsel, good ground exists for a new trial).

Material Information Withheld

The State argues that the trial court erred in granting Frederick s motion for new trial because the information withheld by Cavett during voir dire was not material.

Case law supports the trial court s decision to grant a new trial. In Salazar v. State, the defendant was charged with indecency with a child and a juror failed to disclose during voir dire that he had been an eyewitness to a sexual assault of his own daughter. See 562 S.W.2d 480, 481-82 (Tex. Crim. App. 1978). The Court of Criminal Appeals concluded that the juror was incapable of being fair and impartial because of the similarities between the offense committed against the juror s daughter and the offense charged against the defendant. Id. at 482. Similarly, in Norwood v. State, the defendant was charged with the offense of rape and a juror failed to disclose that his sister had been the victim of a sexual offense. See 123 Tex. Crim. 134, 58 S.W.2d 100, 101 (1933). The Court of Criminal Appeals in Norwood held that the jury s verdict could not stand because the juror failed to disclose a material fact regarding his ability to render a fair and impartial verdict. Id. at 101.

The information Cavett withheld is material because she personally knew at least two sexually abused children in her husband s family. When Cavett failed to respond to inquiries that reasonably would have revealed potential bias, prejudice, or animus toward the defendant, and the defendant relied upon that silence in good faith, then the defendant was deprived of the opportunity to make a knowing and intelligent use of his jury strikes. See Salazar, 562 S.W.2d at 482; see also Von January, 576 S.W.2d at 45. As a result of Cavett s silence, Frederick s use of challenges and peremptory strikes was necessarily hampered. See Franklin, 12 S.W.3d at 477-78. Moreover, through no fault of his own, Frederick was not permitted to determine the extent of Cavett s potential bias. Id. at 478. Under these circumstances, the trial court s decision to grant Frederick a new trial was not unreasonable or without reference to any guiding rules or principles. See Montgomery, 810 S.W.2d at 380. The trial court s decision lies within the zone of reasonable disagreement. See Santellan, 939 S.W.2d at 169. Accordingly, we find the trial court did not abuse its discretion in granting a new trial.

Point one is overruled.

We affirm the order.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed May 1, 2002

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