Kelly Wayne Dozier v. State

Opinion issued April 1, 2010. In The Court of Appeals For The First District of Texas ———————————— NO. 01-08-00901-CR ——————————— Kelly Wayne Dozier, Appellant V. State of Texas, Appellee On Appeal from the 434th District Court Fort Bend County, Texas Trial Court Case No. 45362 MEMORANDUM OPINION A jury found Kelly Wayne Dozier guilty for the murder of his estranged wife, Donna Dozier, and assessed a sentence of sixty years’ imprisonment. Dozier seeks reversal of the conviction, contending that (1) the trial court erred in excluding certain members of Donna’s family from testifying during the punishment phase as to their opinions that Dozier should not receive the maximum sentence; (2) the trial court erred in denying Dozier’s motions to strike for cause (a) a prospective juror who stated that he could not consider probation in a murder case, and (b) a prospective juror who stated that he could not consider any circumstances other than those of the crime itself in assessing punishment; (3) the trial court erred in denying Dozier’s motion for new trial based on a juror’s failure to divulge that he had been charged with theft; and (4) Texas’s statutory requirement that a defendant bear the burden to prove sudden passion by a preponderance of the evidence violates his due process rights as well as the Sixth Amendment of the United States Constitution in that it exposes a defendant to a greater potential sentence than the State must establish by a reasonable doubt. Finding no error, we affirm. BACKGROUND When Dozier became unemployed in early 2006, he began spending hours at his computer, viewing pornography and using his wife’s identity and funds to meet his own financial obligations. In September 2006, Donna left Dozier after he threatened and assaulted her with a bat. Dozier began stalking Donna at her workplace, sometimes spending time in her car. Later that month, Dozier bought a handgun, but returned it to the store on October 2. On October 6, 2006, Dozier agreed to meet a law enforcement officer at his home so the officer could serve him with an ex parte temporary protective order, but Dozier was not present at the appointed time. A few days later, Dozier returned to the gun store for the third time. He repurchased a handgun and also bought two boxes of ammunition. The next day, Dozier rented a car and then drove to Donna’s workplace. Dozier spoke to Donna near her car in the parking lot. Donna confronted Dozier about his stalking behavior and threatened to call the police and have Dozier arrested. Donna turned to walk back into the building, at the same time dialing her cell phone. Dozier chased her down, grabbed her, and shot her in the back of the head, causing her death. Dozier fled the scene in the rental car, but was later arrested at his home and charged with murder. DISCUSSION I. Challenge to exclusion of testimony during punishment phase Dozier first contends that the trial court erred in refusing to re-open the punishment-phase evidence so that the jury could hear testimony from one of Donna’s sisters who stated that she was not in favor of imposing the maximum sentence on Dozier, and from another sister who opined that Dozier should not receive a life sentence because he could not be rehabilitated that way.[1] Article 37.07 of the Texas Code of Criminal Procedure governs evidence at the punishment phase, providing that “evidence may be offered by the State and the defendant as to any matter the court deems relevant to sentencing.” Tex. Code Crim. Proc. Ann. § 37.07(a) (Vernon Supp. 2009); see Ellison v. State, 201 S.W.3d 714, 719 (Tex. Crim. App. 2006). The proposed testimony was not relevant to sentencing. In Payne v. Tennessee, the United States Supreme Court held “that evidence about the victim and about the impact of the murder on the victim’s family is relevant to the jury’s decision as to whether or not the death penalty should be imposed,” but victim impact testimony does not include the victim’s opinion on appropriate punishment. 501 U.S. 808, 827, 111 S. Ct. 2597 (1991). In Simpson v. State, the Texas Court of Criminal Appeals considered whether the State’s erroneous solicitation from the victim’s son his opinion that the defendant should receive the death penalty required a mistrial, noting that, under Payne, the wishes of the victim’s family members as to the defendant’s fate fall beyond the parameters of victim impact evidence and are not admissible. Payne, 501 U.S. at 830 n.2, 111 S. Ct. at 2611 n.2 (overruling the portion of Booth v. Maryland, 482 U.S. 496, 107 S. Ct. 2529 (1987), relating to victim-impact evidence, but not overruling the prohibition on the victim’s family’s opinions on the defendant or the punishment he should receive). A statement of their opinions as to the punishment deserved by the defendant is not a reflection of how their lives have been impacted by the victim’s death. 119 S.W.3d 262, 271–72 (Tex. Crim. App. 2003); see also Sattiewhite v. State, 786 S.W.2d 271, 290 (Tex. Crim. App. 1989); Wright v. State, 962 S.W.2d 661, 663 (Tex. App.—Fort Worth 1998, no pet.) Defense counsel in the trial court conceded that Simpson was “directly on point” against him, as the proposed testimony did not address any mitigating factor, but instead directly recommended a sentence. In contending that the sisters’ opinion testimony about the sentence that the jury should impose should have been admitted, Dozier points to the observation in Payne that the sentencing authority is free to consider a range of relevant material without limitation as to its type or source. See Payne, 501 U.S. at 822, 111 S. Ct. at 2606. This freedom, however, does not extend to evidence that Payne itself has held is inadmissible. We therefore hold that the trial court acted within its discretion in excluding the proffered testimony. II. Challenges for Cause Dozier next contends that the trial court erred in denying his challenges for cause to two jurors. “A challenge for cause is an objection made to a particular juror, alleging some fact which renders the juror incapable or unfit to serve on the jury.” Tex. Code Crim. Proc. Ann. art. 35.16(a) (Vernon 2006). A party may challenge a prospective juror for cause if the prospective juror demonstrates a bias or prejudice against any of the law applicable to the case on which the defense is entitled to rely. Id. art. 35.16(c)(2). “The test is whether the bias or prejudice would substantially impair the prospective juror’s ability to carry out his oath and instructions in accordance with law.” Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim. App. 2002). Before a prospective juror can be excused for cause on this basis, the law must be explained to him and he must be asked whether he can follow that law regardless of his personal views. Jones v. State, 982 S.W.2d 386, 390 (Tex. Crim. App.1998). The proponent of a challenge for cause has the burden to show that the challenge is proper. Feldman, 71 S.W.3d at 747. The proponent does not meet that burden until the record shows that the prospective juror understood the requirement of the law and could not overcome his prejudice well enough to follow it. Id. We review a trial court’s ruling on a challenge for cause with “considerable deference” because the trial court is in the best position to evaluate the prospective juror’s demeanor and responses. Russeau v. State, 171 S.W.3d 871, 879 (Tex. Crim. App. 2005); Blue v. State, 125 S.W.3d 491, 497 (Tex. Crim. App. 2003). We review the totality of the voir dire testimony to determine whether it supports the trial court’s finding with respect to whether the prospective juror is able to follow the law as instructed. See King v. State, 29 S.W.3d 556, 568 (Tex. Crim. App. 2000); Murphy v. State, 229 S.W.3d 334, 339 (Tex. App.—Amarillo 2006, pet. ref’d). We will reverse a trial court’s ruling on a challenge for cause “only if a clear abuse of discretion is evident.” Blue, 125 S.W.3d at 497. A. Challenge to prospective juror 44 Dozier contends that the trial court should have granted his challenge to prospective juror 44 because the juror stated that he could not consider probation for someone who intentionally and knowingly committed murder. The record contains the following exchange: DEFENSE COUNSEL: [Prospective juror 44], you know, when I asked you those questions, you said no, you couldn’t consider [probation]. Now, when he asks you those questions, you said, yeah, you could consider it. Okay. Which is it? I mean, I just want the bottom line. Could you really consider probation or not? PROSPECTIVE JUROR 44: Again, in the — THE STATE: I’d object to the form of the question. THE COURT: In the proper circumstance. DEFENSE COUNSEL: In the proper circumstances could you consider probation? Because you told me no, you couldn’t. PROSPECTIVE JUROR 44: Exactly. Yeah, I told him that yesterday, proper circumstances. DEFENSE COUNSEL: But you told me just now, too. PROSPECTIVE JUROR 44: Well, yeah, exactly. THE STATE: Objection. That’s not letting the juror answer the question. Could we please let him answer the question? THE COURT: You can go ahead and finish your answer. PROSPECTIVE JUROR 44:—Okay. With the proper facts, yes, I could. But, you know, because right now we don’t have anything— DEFENSE COUNSEL: Right. PROSPECTIVE JUROR 44: —I don’t have anything to go under. DEFENSE COUNSEL: Exactly. When, as here, the record demonstrates a vacillating or equivocal prospective juror, we accord great deference to the trial judge who had the better opportunity to see and hear the person. Swearingen v. State, 101 S.W.3d 89, 99 (Tex. Crim. App. 2003). The trial court is able to consider important factors such as demeanor and tone of voice that do not come through when reviewing a cold record. Banda v. State, 890 S.W.2d 42, 54 (Tex. Crim. App. 1994); see Bell v. State, 233 S.W.3d 583, 591 (Tex. App.—Waco 2007, pet. dism’d). We hold that the record supports the trial court’s finding with respect to whether prospective juror 44 is able to follow the law as instructed. B. Challenge to prospective juror 48 Dozier contends that the trial court should have granted his challenge to prospective juror 48 because his responses demonstrated an inability to consider and give effect to mitigating evidence. Voir dire questioning pertinent to this issue is as follows: THE COURT: Will you just make your mind up before you hear the testimony? [Defense counsel] doesn’t want you if you would not consider probation. The State doesn’t want you if you wouldn’t consider the top end. The law says you’re to consider this spectrum. Now, with that, can you answer the question? . . . . JUROR 48: I have a question. In terms of the range of punishment, who determines the range of punishment? DEFENSE COUNSEL: It’s determined by law. JUROR 48: By law. DEFENSE COUNSEL: The law says the range of punishment. JUROR 48: What if you don’t agree with the law? DEFENSE COUNSEL: That’s what I want to know. That’s what I want to know. JUROR 48: I tell you, I don’t agree with the law. DEFENSE COUNSEL: That’s fine. In a minute, we’re going to vote. I’m trying to take care of the questions. If you don’t agree with the law, that’s great, I’m all for that, I just need to know about it. At defense counsel’s request, the trial court brought Juror 48 to the bench for further questioning: DEFENSE COUNSEL: Did you ever raise your card and say that you were not open to probation, to consideration of probation in a proper case where you had found a person guilty of murder? Did you ever say that wasn’t an option for you? JUROR 48: No, sir. DEFENSE COUNSEL: Is that an option for you? JUROR 48: It’s an option. DEFENSE COUNSEL: Okay. JUROR 48: Under the law, I mean, probation under—yes. DEFENSE COUNSEL: Right. But is it—the law says the range of punishment includes the possibility of probation. That’s fine, but is it really an option for you, in your own mind, that you would consider that, really. I mean really consider that as a possibility in an appropriate case? JUROR 48: In an appropriate case, yes, I would consider it. Next, defense counsel explained that, in the sentencing phase of the trial, the State puts on some evidence about why they think you ought to give the guy a heavy sentence—he said he’s going to ask for a life sentence—and then defense has the opportunity to put on some evidence about why you might want to consider probation or a lighter sentence, okay? And you listen to all that evidence. Are you willing to listen to all that evidence? JUROR 48: Yes, sir. Defense counsel then asked Juror 48 to explain his agreement with another panel member’s statement that he would just want to know facts of crime and was not interested in hearing about the defendant’s background and education. Juror 48 explained, as far as the background of what they did and what—you know, what they’ve done before, the fact remains it was a choice they made. DEFENSE COUNSEL: Right JUROR 48: And their background, you know— DEFENSE COUNSEL: That wouldn’t be relevant to you? JUROR 48: Not to myself. DEFENSE COUNSEL: You wouldn’t be willing to consider and give effect—if the evidence was the person had a good background, that wouldn’t matter to you; you wouldn’t consider— JUROR 48: Well, I mean, again, when you make a choice—and everybody knows there’s consequences for choices that you make, and we all—there’s just consequences, period. DEFENSE COUNSEL: . . . So, to you, the only thing that matters is the crime and the circumstances, the immediate circumstances of that crime, what happened, right? JUROR 48: Yes. DEFENSE COUNSEL: The rest of it is not something that you would want to consider or you would consider? JUROR 48: That’s correct. The State then began questioning Juror 48 to obtain further clarification of his opinion on this issue: STATE: Okay. I’m kind of confused, or is that—he said is that something you would consider, and you said yes[;] . . . let me back up one more step. The stuff that you hear during the guilt/innocence part of the trial you carry with you to the punishment phase, and that’s essentially what you’re talking about. But there’s another part to it, too. Because right now, you don’t know anything about this guy behind me. JUROR 48: Right. STATE: You may hear stuff that he’s a really good person, you may hear stuff that he’s a really bad person. Will you wait to factor that into your decision before you make a decision about what to have happen? Don’t you want to hear about that? JUROR 48: Yes. I’m not ruling out I wouldn’t want to hear about it, but if you’re saying making that because he was good and that overruled what he’s done, I mean, I would listen to everything, yes. STATE: Okay. Well, that brings up an interesting point. You are saying that if [defense counsel] brings you lots of good stuff, that’s not going to change the fact that he’s guilty, and that’s not the point. . . . [H]aving lots of other good stuff doesn’t change the fact he’s guilty. . . . But for the punishment phase, it becomes something that you need to listen to about what needs to happen next, and the question is: If there’s stuff where you say—you listen to it, and you say he’s a really bad guy, then you put the sentence over here on the high end, or if you hear lots of stuff about what a good person he is, then you consider the other end of it. But you’ve got to hear something one way or the other. . . . And what we need to know is, we can say it, but will you hear it? JUROR 48: Yes. Yes, I will hear it. After further discussion, defense counsel pursued the following line of questioning: DEFENSE COUNSEL: [C]an you consider and give effect to evidence regarding a defendant’s background and character in a murder case in deciding what the appropriate punishment would be? JUROR 48: Yes, sir. . . . . DEFENSE COUNSEL: Could you consider and give effect to evidence that the Defendant had emotional problems in assessing punishment in a murder case. JUROR 48: Yes, sir. . . . . DEFENSE COUNSEL: [T]he law says you must be able to consider, as a matter of law, any relevant mitigating evidence. Do you agree or disagree with the law? . . . JUROR 48: I agree with the law. Both counsel and the court exhaustively questioned Juror 48. Like prospective juror 44, prospective juror 48 vacillated in describing his position on the effect of mitigating evidence. We therefore defer to the trial court’s ruling and hold that it did not abuse its discretion in denying Dozier’s challenge for cause to prospective juror 48. See Swearingen, 101 S.W.3d at 99. III. Denial of motion for new trial Dozier contends that he was erroneously deprived of a new trial. He moved for a new trial because one of the jurors failed to disclose in response to the questions on the juror information card, “Ever involved in a criminal case?” and “Ever been involved in a lawsuit?” that he had been charged with Class B misdemeanor theft, a nondisclosure that caused Dozier significant harm. During voir dire, the juror denied being affected by an incident of family violence, in which he described the perpetrator who killed his wife’s cousin as someone who “beat the rap.” Dozier claims that he would have pursued questioning on that issue had he known of the juror’s criminal background because of the potential effect of the omission on the juror’s credibility and his ability to be fair and impartial. When a juror “withholds material information during the voir dire process, the parties are denied the opportunity to exercise their challenges, thus hampering their selection of a disinterested and impartial jury.” Franklin v. State, 138 S.W.3d 351, 354 (Tex. Crim. App. 2004) (internal quotation omitted). To obtain a new trial based on juror misconduct, the defendant must show that the juror withheld material information during voir dire despite the defendant’s due diligence. Id. at 355–56; Gonzales v. State, 3 S.W.3d 915, 917 (Tex. Crim. App. 1999). Diligence requires that counsel ask questions calculated to bring out information that might indicate a juror’s inability to be impartial and truthful. Id. Unless defense counsel asks such questions, material information that a juror fails to disclose is not really “withheld.” Gonzalez, 3 S.W.3d at 917. Counsel must ask specific questions, not rely on broad ones, to satisfy this obligation and must ask follow-up questions after a potential bias is discovered. Id. In Gonzalez, the Court of Criminal Appeals explained that counsel’s burden to use diligence requires oral questioning during voir dire to follow up on any written response from a prospective juror that counsel deems material. The Court observed: While a questionnaire may serve as an efficient vehicle for collecting demographic data, it is not the most reliable way to collect other types of information. Counsel should never assume that the respondents will understand each question as it was intended by counsel to be understood. . . . [W]ritten questions are by nature vulnerable to misinterpretation—even questions that appear to be subject to only one interpretation. 3 S.W.3d at 917. The record does not demonstrate that defense counsel exercised due diligence in questioning the juror about his written responses to the questions concerning prior involvement in a criminal case or lawsuit. Because the record does not show juror misconduct, the trial court did not err in denying Dozier’s motion for new trial. IV. Sixth Amendment and Due Process Challenges In his final issue, Dozier, citing Cunningham v. California, 549 U.S. 270, 127 S. Ct. 856 (2007), and Mullaney v. Wilbur, 421 U.S. 684, S. Ct. 1881 (1975), contends that section 19.02(d) of the Texas Penal Code, which requires the defendant to bear the burden to prove sudden passion by a preponderance of the evidence as an affirmative defense to a murder charge, relieves the State from having the burden of proof in violation of his rights under the Sixth Amendment of the United States Constitution and the due process guarantees afforded under both the federal and state constitutions. Dozier acknowledges that we recently rejected this argument. See Noland v. State, 264 S.W.3d 144, 150–51 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (relying on Patterson v. New York, 432 U.S. 197, 198, 205, 97 S. Ct. 2319, 2320, 2325 (1977), and Perry v. State, 158 S.W.3d 438, 448 n.14 (Tex. Crim. App. 2004), and finding Cunningham “inapposite because a jury finding of sudden passion under section 19.02(d) of the Texas Penal Code decreases the punishment range, rather than increases the punishment range,” and thus does not implicate constitutional right at issue in Cunningham). We decline Dozier’s request to overrule Noland. CONCLUSION We conclude that the trial court did not err in refusing to re-open the punishment phase evidence so that defense counsel could elicit opinion testimony from Donna’s sisters about the punishment Dozier should receive or in refusing Dozier’s challenges for cause to prospective jurors 44 and 48. We further conclude that the trial court did not err in denying Dozier’s motion for new trial and reject Dozier’s constitutional challenges to section 19.02(d) of the Texas Penal Code. Accordingly, we affirm the judgment of the trial court. Justice Bland Justice Panel consists of Justices Jennings, Hanks, and Bland. Do not publish. Tex. R. App. P. 47.2(b). [1] Dozier raised this contention after the close of punishment-phase evidence and again in his motion for new trial. Defense counsel explained that he had just learned of the sisters’ opinions in conversations he had with them during a break in the proceedings and related what they said, but did not procure a bill of exceptions or affidavits from the sisters to show what their proffered testimony would have been. The record reflects that these witnesses made victim-impact statements before the jury, but those statements presumably did not include the opinions Dozier sought to elicit and, in any event, were not recorded.