The State of Texas v. Robert Dale Pierce--Appeal from 173rd District Court of Henderson County

NO. 12-04-00053-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

THE STATE OF TEXAS, APPEAL FROM THE

APPELLANT

V. 173RD DISTRICT COURT OF

ROBERT DALE PIERCE,

APPELLEE HENDERSON COUNTY, TEXAS

MEMORANDUM OPINION

Robert Dale Pierce, Appellee, was convicted by a Henderson County jury for the offenses of manufacturing a controlled substance, methamphetamine, in an amount of over four hundred grams and possession of a controlled substance, methamphetamine, in an amount of over four hundred grams. The jury sentenced him to imprisonment for life on each count. Appellee filed a motion for new trial, which the trial court granted. The State appeals, raising seven issues. We affirm.

Background

Bryan Tower, Police Chief of the Seven Points Police Department, received a tip that a methamphetamine laboratory might be in operation at the home of Appellee s mother. Tower and a Henderson County Sheriff s Department investigator went to the house and knocked on the door. After a short time during which the officers heard shouting and saw people inside the house running back and forth, Laura Sullivan opened the door and let the officers in. When questioned about whether methamphetamine was being made in the house, Sullivan told the officers that Appellee had been cooking methamphetamine that morning in the garage. Sullivan also told the officers that they needed to secure the house because several people in the house had guns and were disposing of the drugs.

The officers secured the house, and Appellee gave them permission to conduct a search. During the search, the officers found numerous items related to methamphetamine production and drug use, including substances containing methamphetamine, liquids containing methamphetamine in the process of being manufactured, numerous implements used to make methamphetamine, a syringe containing a substance that included methamphetamine, and a set of scales. In a two count indictment, Appellee was charged with manufacturing a controlled substance, methamphetamine, in an amount of over four hundred grams and possession of a controlled substance, methamphetamine, in an amount of over four hundred grams. See Texas Health & Safety Code Ann. 481.112(f), 481.115(f) (Vernon 2003). //

At trial, there was testimony that Appellee had been in the garage for a number of hours during the day of the search and that there was a strong chemical odor of methamphetamine production in the garage. There was also testimony that Appellee arrived at his mother s house the day after his mother entered a Dallas hospital for surgery. One witness testified about getting methamphetamine from Appellee. Investigators testified about finding containers of methamphetamine precursors, methamphetamine binary liquids, and methamphetamine residue on various containers used in methamphetamine production. Ten items of material containing methamphetamine were found in numerous locations and varying amounts. The three largest amounts were (1) 456.69 grams, (2) 722.15 grams, and (3) 164.01 grams. //

The jury heard the evidence, found Appellee guilty on both counts of the indictment, and sentenced him to imprisonment for life on each count. Appellee filed a motion for new trial, raising raised seven issues. The trial court conducted a brief hearing on the motion for new trial. Appellee called Gerald Latimer, a juror, as a witness. Latimer testified that he was a former law enforcement officer and a former DPS officer. The trial court initially denied the motion for new trial, subject to reconsideration, but later signed an order granting the motion without stating the reason for its ruling. The State appealed from the granting of the new trial.

Standard of Review

It is well established that the granting or denying of a motion for new trial lies within the discretion of the trial court. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). Therefore, the standard of review for a trial court s ruling on a motion for new trial is abuse of discretion. Gonzalez v. State, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993). In reviewing for an abuse of discretion, an appellate court will reverse the trial court s ruling only when that decision is so clearly wrong as to lie outside the zone within which reasonable persons might disagree. Id. at 695 n.4. A trial court abuses its discretion when it grants a new trial without reference to any guiding rules or principles or, in other words, when the act was arbitrary or unreasonable. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).

It is presumed on appeal that the trial court properly exercised its discretion, in the absence of contrary evidence. Beard v. State, 385 S.W.2d 855, 856 (Tex. Crim. App. 1965). Furthermore, when no findings of fact or conclusions of law are made by the trial court, the judgment must be upheld if any appropriate ground exists to support it. State v. Gill, 967 S.W.2d 540, 542 (Tex. App. Austin 1998, pet. ref d). Where the trial court grants a motion for new trial without specifying the reason, in order to prevail on appeal, the State must negate each issue asserted in the motion for new trial. State v. Shelton, 869 S.W.2d 513, 514-15 (Tex. Crim. App. 1993). If the State fails to negate any single issue, the appellate court will affirm the trial court s order. See id. The trial court also has the discretion to grant a new trial in the interest of justice. State v. Gonzalez, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993). It is not necessary that the motion for new trial allege in the interest of justice as a ground. State v. Lasalle, 135 S.W.3d 94, 96-97 (Tex. App. Corpus Christi 2003, pet. ref d) (citing Gonzalez, 855 S.W.2d at 696). It is also not necessary that the trial court state the new trial was granted in the interest of justice. Lasalle, 135 S.W.3d at 97 (citing State v. Gill, 967 S.W.2d 540, 542-43 (Tex. App. Austin 1998, pet. ref d)). The abuse of discretion standard of review applies where a new trial was granted in the interest of justice. See Gill, 967 S.W.2d at 542-43.Juror s Nondisclosure of Prior Law Enforcement Experience

Appellee asserted seven grounds for a new trial. As his third ground, Appellee alleged that the jury engaged in misconduct in that certain jurors did not disclose during voir dire questioning that they or family members had prior law enforcement experience despite direct questions regarding said facts. // Only one witness, juror Gerald Latimer, was called to testify at the hearing on Appellee s motion for new trial, and he was questioned about his prior law enforcement experience. That fact, and our review of the record, leads us to assume that he is the only person to whom this ground was directed. Therefore, our analysis will be limited to Gerald Latimer.

In its second issue, the State contends that the trial court abused its discretion by granting the motion for new trial on the ground that Latimer did not disclose his prior law enforcement experience during voir dire. Because this issue is dispositive, we need not address the State s remaining issues.

Applicable Law

The accused in all criminal prosecutions has a right to a fair trial by an impartial jury. U.S. Const. amend VI; Tex. Const. art. I, 10. Included within that guarantee, and essential to the exercise of that right, is the right of counsel to question members of the venire panel in order to intelligently exercise peremptory challenges. Franklin v. State, 138 S.W.3d 351, 354, 357 (Tex. Crim. App. 2004). The voir dire process is designed to insure, to the fullest extent possible, that an intelligent, alert, disinterested, impartial, and truthful jury will perform the duty assigned to it. Ford v. State, 129 S.W.3d 541, 547 (Tex. App. Dallas 2003, pet. ref d). Where a juror withholds material information in the voir dire process, the parties are denied the opportunity to exercise their challenges, thus hampering their selection of a disinterested and impartial jury. Salazar v. State, 562 S.W.2d 480, 482 (Tex. Crim. App. [Panel Op.] 1978).

To be material, the information withheld must be of a type suggesting potential for bias or prejudice. Ford, 129 S.W.3d at 547. It is not the mere failure to disclose information that warrants a new trial. Id. Rather, it is the chance that a biased individual came to serve through silence or deception that the law seeks to ameliorate. Santacruse v. State, 963 S.W2d 194, 197 (Tex. App. Amarillo 1998, pet. ref d). With respect to oral questions asked during voir dire, error occurs where a prejudiced or biased juror is selected without fault or lack of diligence on the part of defense counsel, such counsel acting in good faith on juror s responses and having no knowledge of their inaccuracy. Gonzales v. State, 3 S.W.3d 915, 916 (Tex. Crim. App. 1999) (emphasis in original). Consequently, defense counsel has an obligation to ask questions calculated to bring out information that might be said to indicate a juror s prejudice or bias. Id.

To satisfy this obligation, counsel must ask specific, not broad, questions and must ask follow up questions after uncovering potential bias. Id. at 916-17. The failure of a juror to disclose material information is not considered to have been withheld unless defense counsel asked such questions during voir dire. Id. at 916-17. Further, whether a juror states that the withheld information did not affect his verdict is not dispositive where the information was material and therefore likely to affect the juror s verdict. Franklin v. State, 12 S.W.3d 473, 478 (Tex. Crim. App. 2000). The good faith of the juror is largely irrelevant. Id. at 479.

Analysis

During voir dire, defense counsel asked the panel if [a]nybody here works in any branch of law enforcement? Anybody here who s retired from any branch of law enforcement? . . . Anybody here who has a relative, a husband, any kind of relative at all that works in law enforcement? Latimer did not respond to any of these questions and was seated as a juror.

Latimer was the only witness at Appellee s motion for new trial. After establishing that Latimer sat on Appellee s jury, defense counsel asked, Okay. Mr. Latimer, is it or is it not a fact that formerly back in the [sixties] that you were a state trooper for the State of Texas, is that correct? Mr. Latimer answered in the affirmative, and counsel passed the witness. The State asked Latimer if being a state trooper in the sixties caused him not to be a fair and impartial juror or influenced his deliberations on the verdict or the sentence. Latimer said it did not. The State asked Latimer if he remembered a question about past employment as a trooper being asked, and he said he did not.

The court then heard argument on the motion. Defense counsel contended he had asked the jury panel whether there was any connection with law enforcement on the part of any of the people on the jury panel. This is not precisely correct, which the trial court could ascertain from the transcription of the voir dire examination that was admitted at the hearing. As quoted above, counsel s questions to the jury panel did not inquire whether any panel member had ever had any connection with law enforcement. Rather, counsel asked if any of the panel members themselves worked in law enforcement, if anyone on the panel was retired from law enforcement, or if anyone had a relative who worked in law enforcement. Though Latimer could have volunteered his past employment as a state trooper, which might have been the intent of defense counsel s line of inquiry during voir dire, counsel did not ask about past employment in law enforcement.

We note that counsel did not strike either Juror 1 or Juror 28, although Juror 1's son-in-law was a police officer and Juror 28's son was a former assistant district attorney. However, since neither of those jurors had actual law enforcement experience themselves, defense counsel could have made a tactical decision to leave them on the jury. His questioning about jurors who had law enforcement experience indicates that this experience was an important consideration in his decision of who to strike from the jury. Indeed, a panel member s personal law enforcement experience could have been a critical consideration in deciding who to strike.

The trial court reasonably could have concluded that Latimer s prior law enforcement experience was material and that Appellee s counsel did not ask questions calculated to elicit this information. Because defense counsel did not know of Latimer s law enforcement experience, Appellee could have been deprived of the opportunity to intelligently exercise his peremptory challenges. Neither Latimer s good faith answers to the specific questions asked nor his assurance that his past law enforcement experience did not influence his decision is dispositive. Consequently, the trial court reasonably could have concluded that a new trial was required in the interest of justice. The State s second issue is overruled.

Disposition

The trial court s order granting Appellee s motion for new trial is affirmed.

SAM GRIFFITH

Justice

Opinion delivered February 8, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(DO NOT PUBLISH)