Paul Durham v. The State of Texas--Appeal from 217th District Court of Angelina County

NO. 12-05-00348-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

PAUL DURHAM, APPEAL FROM THE 217TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE ANGELINA COUNTY, TEXAS

MEMORANDUM OPINION

Appellant Paul Durham appeals his sentence for aggravated sexual assault of a child. In one issue, Appellant contends that the trial court erred in overruling his challenges for cause as to two prospective jurors. We affirm.

Background

Appellant was found guilty of aggravated sexual assault of a child by a jury and assessed sixty years of imprisonment. He appealed and the Ninth Court of Appeals affirmed his conviction, but reversed the trial court s judgment as to punishment and remanded to the trial court for a new punishment hearing. On remand, the jury assessed punishment at ninety-nine years of imprisonment. This appeal followed.1

Challenges for Cause

In his sole issue, Appellant contends that the trial court abused its discretion when it denied Appellant s challenges for cause to two prospective jurors.

Standard of Review and Applicable Law

A trial court has discretion in ruling on challenges for cause, and its rulings will not be disturbed on appeal absent an abuse of that discretion. Herron v. State, 86 S.W.3d 621, 629 (Tex. Crim. App. 2002). The reviewing court must examine the record as a whole to determine whether there is support for the trial court s rulings, and in doing so, it must give deference to the trial court, which was in a position to actually see and hear the prospective juror. Id. We reverse a trial court s ruling on a challenge for cause only if a clear abuse of discretion is evident. Russeau v. State, 171 S.W.3d 871, 879 (Tex. Crim. App. 2005).

A defendant may challenge a prospective juror for cause for either of the following reasons:

1. That he is related within the third degree of consanguinity or affinity, as determined under Chapter 573, Government Code, to the person injured by the commission of the offense, or to any prosecutor in the case; and

2. That he has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense for which the defendant is being prosecuted or as a mitigation thereof or of the punishment therefor.

Tex. Code Crim. Proc. Ann. art. 35.16( c) (Vernon Supp. 2006). Bias against the law is the refusal to consider or apply the relevant law, which means the prospective jurors beliefs or opinions would prevent or substantially impair the performance of their duties as jurors. Sadler v. State, 977 S.W.2d 140, 142 (Tex. Crim. App. 1998).

In a criminal trial, both the defendant and the State have the right to select from jurors who believe in the full range of punishment. See Johnson v. State, 982 S.W.2d 403, 405 (Tex. Crim. App. 1998). Prospective jurors must be able to conceive both of a situation in which the minimum penalty would be appropriate and of a situation in which the maximum punishment would be appropriate. See Rosales v. State, 4 S.W.3d 228, 233 (Tex. Crim. App. 1999). Prospective jurors must be able to accept that, for the offense in question, the minimum legal punishment will be appropriate in some circumstances and the maximum legal punishment will be appropriate in some circumstances. Id. A prospective juror s complete inability to consider the full range of punishment would render that person unfit for jury service. See Tex. Code Crim. Proc. Ann. art. 35.16(b)(3), (c)(2); Maddux v. State, 862 S.W.2d 590, 600 n.2 (Tex. Crim. App. 1993).

In assessing a prospective juror s capacity to consider the full range of punishment, we do not focus on an isolated answer or passage of the prospective juror s testimony, but on her voir dire testimony as a whole. See Allridge v. State, 850 S.W.2d 471, 482 (Tex. Crim. App. 1991). We consider the juror s responses and weigh those that are vague and contradictory against those that are not. See Connally v. State, 696 S.W.2d 432, 435 (Tex. App. Houston [14th Dist.] 1985, pet. ref d). The trial judge is able to determine the meaning of such responses not only by the words used but also by the demeanor and voice tone of the prospective juror. See id. We, however, have only the cold record before us and must consider this difference. See id. If the prospective juror s answers are vacillating, unclear, or contradictory, we accord deference to the trial court s judgment. Brown v. State, 913 S.W.2d 577, 580 (Tex. Crim. App. 1996).

Prospective Juror Kathy McFarland

At the punishment hearing, the State asked prospective juror Kathy McFarland, Ms. McFarland, how do you feel about that, that a jury should have that wide latitude; but they have to be able to consider the full range of punishment? You feel that s a good thing? McFarland responded, Yes. The State then asked the entire jury panel, Is there anybody here who, just as a matter of general principle, feels contrary, that you couldn t keep your mind open one way or the other, consider all the options? No prospective juror spoke up. The State posed the same question to prospective jurors row by row. While some jurors expressed an inability to consider the full range of punishment, McFarland did not.

Next, the State presented the following consideration for the jury panel:

I m not going to ask any details, but I have a couple of questions that are real important. Is there anybody here on the jury panel who, either yourself, an immediate family member, or a close friend, someone that you ve had close association with, [your] dear friends for a long time, anybody who fits in that category who s been the victim of a sex crime?

Okay. I ll take it one hand at a time, starting on the left-hand side and on the third row. Ms. McFarland, how would that experience, regardless of who it was who it happened to, how will that affect your jury service?

McFarland responded, It wouldn t.

The State continued its voir dire asking, Anybody here on the jury panel, either yourself, an immediate family member, or very close friend that you consider like family who s had a case in the criminal justice system more serious than a traffic ticket . . . was that person treated fairly, unfairly, or no opinion? McFarland raised her hand and responded, No opinion.

The State completed its voir dire by asking the jury panel whether there was something that would affect their service as a juror. McFarland raised her hand and said, Due to something similar happening to someone close to me I don t know if I could be you know, I don t know if I could go with a lesser charge and I don t know if I could go with a maximum. I m, like, in between.

Appellant s counsel then questioned the jury panel:

Is there anyone who has any concerns based on all the questions asked either by the State or that you think has not been brought up and you think needs to be brought to the attention of the attorneys or the Judge? I won t discuss it out here in general. If you would just raise your right hand so we can do a private voir dire, if there s something that we haven t raised that you think might affect your deliberation in this case. And I don t see any hands.

When the court asked for challenges, Appellant s counsel challenged: Number 13, Ms. McFarland. She had a similar happening. She had prior experience with a sex crime, and I believe she stated she could not be a fair and impartial juror in this case. The trial court denied the challenge stating, She s not one that I I don t think she s disqualified, so I m going to deny Number 13.

McFarland expressly stated she could consider the full range of punishment. Later, based upon a similar crime happening to someone she knew, she vacillated by explaining that she was not sure if she could consider a lesser charge or the maximum. We do not second guess a trial court s judgment when a prospective juror vacillates or gives contradictory answers. See Brown, 913 S.W.2d at 580. Considering McFarland s voir dire statements as a whole, we cannot say the record reflects that the trial court abused its discretion in denying Appellant s challenge for cause of McFarland.

Prospective Juror Vivian Harrison

Appellant also complains that the trial court abused its discretion when it denied his challenge for cause to prospective juror Vivian Harrison. Appellant s counsel questioned the venire panel for bias or prejudice based upon the prospective juror s associations with other people.

I m trying to find 12 fair and impartial jurors for both sides. And sometimes an individual we may not ask the right question. I m just trying to find, because of personal experience or background that an individual just may favor the State of Texas or the District Attorney s Office. Let s go to an example. If you were [a] very close friend of Clyde Herrington and you know that if you get in that jury box, you re going to follow you will want to side with the District Attorney s Office. And you know that. It s not fair to me for you to do that. And I d rather someone just [go] ahead and [say], Look, I got [too] close [of a relationship]. I m going to favor his side. And that s all I m trying to find out.

Harrison raised her hand and said, I just my sister-in-law [Shelba Harrison] works for the District Attorney s Office. It wouldn t make [sic] a factor. I wouldn t favor the District Attorney s Office because she works there.

Appellant s counsel challenged Harrison for cause, saying, Number 27, Ms. Harrison, said that she knew someone in the District Attorney s Office, Shelba, and that she would favor the State of Texas. The court denied the challenge for cause to Harrison.

Initially, we note that Shelba Harrison is not listed as a prosecutor in the case against Appellant. Thus, challenge for cause under article 35.16(c)(1) is inappropriate. See Tex. Code Crim. Proc. Ann. art. 35.16(c)(1). Furthermore, Harrison expressly stated that her relationship by marriage to an employee in the District Attorney s Office would not be a factor in her ability to be an unbiased juror. Appellant has not shown that the trial court abused its discretion in denying Appellant s challenge for cause of Harrison.

Conclusion

Having reviewed the record as a whole, we cannot conclude that the trial court abused its discretion in denying Appellant s challenges for cause of prospective jurors McFarland and Harrison. Consequently, we overrule Appellant s sole issue. Having overruled Appellant s sole issue, we affirm the judgment of the trial court.

BRIAN HOYLE Justice

Opinion delivered September 6, 2006.

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

(DO NOT PUBLISH)

1 Angelina County became a part of the Twelfth Court of Appeals District on September 1, 2005. Tex. Gov t Code Ann. 22.201(m) (Vernon Supp. 2006). Appellant filed his notice of appeal on November 1, 2005.