Justin Michael Jones v. State

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS ) JUSTIN MICHAEL JONES, ) No. 08-02-00465-CR ) Appellant, ) Appeal from ) v. ) County Court at Law ) THE STATE OF TEXAS, ) of Midland County, Texas ) Appellee. ) (TC# 85,631) O P I N I O N Justin Michael Jones appeals his driving while intoxicated conviction. He entered a plea of not guilty and was found guilty by a jury. He was assessed punishment of ninety days in jail suspended on community supervision for one year and a $350 fine. CHALLENGE FOR CAUSE Appellant's main contention in his sole issue for review is that the trial court erroneously refused to grant his challenge for cause against prospective juror Norma Pederson because (1) Pederson had known the State's only witness, Deputy Sheriff Al Chitwood, for at least twenty years and had at one time attended the same church, (2) she believed Chitwood to be an honest man, and (3) she would believe a police officer more than another witness. Preservation of Error In order for Appellant to preserve his error on the denied challenge for cause, he must first demonstrate that (1) he asserted a clear and specific challenge for cause; (2) he used a peremptory challenge on the complained-of venireperson; (3) all his peremptory challenges were exhausted; (4) his request for additional strikes was denied; and (5) an objectionable juror sat on the jury. Feldman v. State, 71 S.W.3d 738, 744 (Tex.Crim.App. 2002), citing Green v. State, 934 S.W.2d 92, 105 (Tex.Crim.App. 1996). While the record does not show a specific challenge for cause by the defense, the court clearly recognized the intent. To avoid forfeiture of a complaint on appeal, the defendant must let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it. Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App. 1992). After the court denied the challenge for cause, Appellant requested two additional peremptory challenges. The court denied this request as well. Appellant then exercised all of his peremptory challenges and struck Pederson. However, Sharon L. Musselman, a juror objectionable to the defense, remained on the jury. Appellant has properly preserved the error for review. Standard of Review When examining a trial court's denial of a challenge for cause, we examine the entire record to determine whether sufficient evidence exists to support the court's ruling and we defer to the court's decision because the trial judge has the unique opportunity to observe the demeanor and tone of prospective jurors. Feldman, 71 S.W.3d at 744, citing Patrick v. State, 906 S.W.2d 481, 488 (Tex.Crim.App. 1995); King v. State, 29 S.W.3d 556, 568 (Tex.Crim.App. 2000). We will reverse only if the record establishes a clear abuse of discretion. Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App. 1992). If a prospective juror indicates bias or prejudice during a portion of voir dire, but the record as a whole establishes that the juror can carry out his duty within the law, then the court does not abuse its discretion in refusing a challenge for cause of the juror. Morales v. State, 875 S.W.2d 724, 725-26 (Tex.App.--Fort Worth 1994), citing Harris v. State, 784 S.W.2d 5, 22-23 (Tex.Crim.App. 1989). Substantive Law A challenge for cause can be made by either the State or defense if a juror "has a bias or prejudice in favor of or against the defendant." Tex.Code Crim.Proc.Ann. art. 35.16(a)(9)(Vernon 2003). Bias is defined "as an inclination toward one side of an issue rather than to the other." Anderson v. State, 633 S.W.2d 851, 853 (Tex.Crim.App. 1982), citing Compton v. Henrie, 364 S.W.2d 179, 182 (Tex. 1963). However, in order for bias to rise to a level warranting disqualification, the juror's state of mind must appear to "lead[] to the natural inference that [he] will not or did not act with impartiality." Anderson, 633 S.W.2d at 853, citing Compton, 364 S.W.2d at 182. If a challenged prospective juror is biased as a matter of law, the juror must be struck and cannot be rehabilitated. Anderson, 633 S.W.2d at 854; see Williams v. State, 565 S.W.2d 63 (Tex.Crim.App. 1978); Hooper v. State, 100 Tex.Crim. 147, 272 S.W. 493 (1925). Bias as a matter of law exists when the prospective juror admits he is biased for or against the defendant. Anderson, 633 S.W.2d at 854; see McBride v. State, 110 Tex.Crim. 308, 7 S.W.2d 1091 (1928); Brown v. State, 289 S.W. 392 (Tex.Crim.App. 1925); Hooper, 272 S.W. 493. Bias as a matter of law also applies where a prospective juror is related to the State's primary witness or cannot impartially judge the credibility of witnesses. Burge v. State, 117 Tex.Crim. 141, 142-43, 35 S.W.2d 735, 736 (1931); Hernandez v. State, 563 S.W.2d 947, 950 (Tex.Crim.App. 1978). However, the court exercises discretion in determining whether or not bias exists. Anderson, 633 S.W.2d at 854. Where the juror states he believes that he can set aside any influences he may have, and the trial court overrules a challenge for cause, its decision will be reviewed in light of all the answers the prospective juror gives. Anderson, 633 S.W.2d at 854; see Swap Shop v. Fortune, 365 S.W.2d 151 (Tex. 1963); Wade v. Austin, 524 S.W.2d 79 (Tex.Civ.App.--Texarkana 1975, no writ); Brown v. Herring, 466 S.W.2d 664 (Tex.Civ.App--Eastland 1971, writ ref'd n.r.e.). Relationship with State's Sole Witness A mere "tangential acquaintance with the victim or the defendant does not justify a trial court sustaining a challenge for cause." Anderson, 633 S.W.2d at 853, citing Chambers v. State, 568 SW.2d 313, 337 (Tex.Crim.App. 1978). Although a tangential acquaintance may be a source of bias, "the mere fact that a juror knows, or is a neighbor, or an intimate acquaintance of, and on friendly relations with, one of the parties to a suit, is not sufficient basis for disqualification." Anderson, 633 S.W.2d at 853, citing Allbright v. Smith, 5 S.W.2d 970 (Tex.Comm'n App. 1928). During voir dire, Pederson described her relationship with Deputy Chitwood as friendship and acknowledged that she also knew him from church. Upon further questioning, she revealed that she had known him years ago and the two had friends in common but that she had only seen him once in recent years. She did not frequent Chitwood's home, and she did not know if Chitwood still attended her church. The court characterized the relationship as acquaintances rather than friends. We conclude that Pederson's acquaintance with Chitwood does not rise to the level of bias as a matter of law and would not justify the trial court sustaining a challenge for cause. The record shows no evidence that Pederson was biased against Appellant, nor does the record show Pederson was related to any of the parties. See Anderson, 633 S.W.2d at 853 n.1 (holding that the prospective juror could render a fair verdict in spite of her knowledge of the victim and State witnesses even though she had commented she may be more biased and that it would be difficult for her to treat them as strangers because she did not know the evidence at that time and believed she could return a verdict based on the evidence, not on her relationship with the victim and witnesses). No inference can be deduced from Pederson's voir dire showing that she was unable to act with impartiality or was predisposed to one side or the other. Predisposition to Believe Police Officer Over Another Witness Defendants are entitled to impartial jurors - those "genuinely open-minded and subject to persuasion." Feldman, 71 S.W.3d at 747, citing Jones v. State, 982 S.W.2d 386, 389 (Tex.Crim.App. 1998). If a juror cannot judge the credibility of a witness impartially, then he is subject to being challenged for cause based on bias or prejudice in favor of or against the defendant. Feldman, 71 S.W.3d at 745, citing Jones, 982 S.W.2d at 389. Without exhibition of any extreme or absolute opinions as to credibility, simply being more or less skeptical of a certain category of witnesses does not make a prospective juror subject to challenge for cause. Feldman, 71 S.W.3d at 747, citing Jones, 982 S.W.2d at 389. Moreover, jurors are not challengeable merely because they would give certain witnesses a slight edge in terms of credibility, because complete impartiality cannot be realized as long as human beings are called upon to be jurors. Ladd v. State, 3 S.W.3d 547, 560 (Tex.Crim.App. 1999), citing Jones, 982 S.W.2d at 389. On voir dire, Pederson made the following relevant statements: • She was not leaning toward Chitwood before hearing the evidence just because she knew him. • She could be fair and impartial in the case. • She had a predisposition to believe a police officer more than someone else. • She could vote her conviction even if the State did not meet its burden of proof and its testifying witness was an officer who was a friend. • She would try hard to look at the evidence but could not say she would not be swayed one way or another because she knew Chitwood. • She could listen to Chitwood's testimony and judge it based on whether the State had made their case. • She would be able to set aside her friendship and acquaintance with Chitwood in serving as a juror. • She had a predisposition to believe Chitwood more than someone else since she knew him and believed him to be a honest man. After Pederson's voir dire, the court responded as follows: The Court is not going to strike or challenge Ms. Pederson for cause. I don't believe that under the circumstances it is a fair question for her. She says, yes, I have this knowledge of this friend, and she has not heard the cross-examination and she has not had an opportunity to test the case or the testimony of the witness and she has indicated that he is not a close friend or anything else, and the Court declines to strike her under these circumstances or challenge her under these circumstances. Pederson was not challengeable simply because she was predisposed to believe police officers over other witnesses. Her statements indicate that she would give only a slight edge to officer witnesses. In fact, Pederson exhibited a willingness to act impartially and fairly in the case and to judge the credibility of the witnesses based on their testimony. The record as a whole establishes that Pederson could have carried out her duty as a juror within the law. Finding no abuse of discretion, we overrule Appellant's sole point and affirm the judgment of the trial court. February 5, 2004 ANN CRAWFORD McCLURE, Justice Before Panel No. 1 Larsen, McClure, and Chew, JJ. (Do Not Publish)