Blanchard, Brant Ray v. State

Affirmed and Majority and Concurring Opinions filed November 23, 2005 Affirmed and Majority and Concurring Opinions filed November 23, 2005. In The Fourteenth Court of Appeals ____________ NO. 14-04-00482-CR ____________ BRANT RAY BLANCHARD, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 185th District Court Harris County, Texas Trial Court Cause No. 955,512 M A J O R I T Y   O P I N I O N Appellant, Brant Ray Blanchard, was convicted following a jury trial of aggravated sexual assault of a child; he was sentenced to twenty years= confinement and assessed a $10,000 fine. See Tex. Pen. Code Ann. ' 22.021 (Vernon 2003). In two related points of error, appellant argues (1) he was denied the right to a fair trial when a juror withheld information about a family member=s conviction for indecency with a child, and (2) the trial court abused its discretion in denying his request for a new trial. We affirm. Prior to trial, the judge began voir dire by asking the venire about the burden of proof and whether they could presume appellant=s innocence knowing he faced charges of aggravated sexual assault of a child and indecency with a child. Several members of the panel expressed concern that personal experience might preclude them from being impartial. The court briefly questioned these individuals and then relinquished questioning to the parties. The State then proceeded with the following colloquy: Like I said, these are tough cases and I know some of you all raised your hand when the judge was talking to you about proof beyond a reasonable doubt and mentioned your lives had been touched in one way or another by sexual assault or some type of sexual-related offense with children. If I could, I would like to go row by row again with who that was again. Basically what I=m looking for is either you, close friend or family member who was either a victim of sexual assault or indecency by contact to the point where you don=t think you could be fair to the [appellant] or it would in some way inhibit your judgment, ability to sit in judgment of this trial or on the other side of this case, perhaps you have someone you know that is close to you who has been falsely accused of it. You may believe that. Obviously these types of cases are very personal and sometimes if we have a relative charged with something like that, we don=t like to admit it to ourselves. And we, henceforth, think that they=ve been charged wrongly. But if you had one of those two type situations happen to you, I=d like to know about it. (emphasis added). Several jury panelists responded and were asked relevant follow-up questions. The panel member who was later seated as juror eleven did not respond. After the State concluded, defense counsel questioned the panel about the presumption of innocence and then began asking specific questions of individual venire members: [To one panelist] . . . [D]o you have any experiences in your own life that you feel would make you less than an unbiased juror in a case like this? . . . . You remember when [the prosecutor] . . . was talking about people being accused or you might have family members that are accused and I think the words he used were something to the effect of because they=re a family member, we don=t want to accept they=re accused; so, we might always deny it, leaving me to believe he was referring to a situation where your family member is accused, but they=re guilty, but you won=t accept that. Can you accept the proposition that people can be falsely accused of sexual assault of a child? . . . . Anybody on the first row that would feel that because of the nature of the type of offense that they would think it=s just -- it=s not a type of offense where somebody can be falsely accused? Anybody on the first row? The record does not indicate which, if any, panel members responded. Regardless, counsel immediately returned to questioning individual jurors about punishment and other related topics. At the close of voir dire, both sides exercised their challenges for cause and peremptory strikes. Neither side challenged juror eleven. After the trial concluded, juror eleven indicated to the judge and attorneys that a family member had been convicted of indecency with a child, and that he believed it was important to convict people in these types of cases. Based on this disclosure, appellant timely filed a motion for new trial on June 14, 2004[1]. Three days later, appellant filed a Acorrected@ motion for new trial[2]. At the July 15, 2004 hearing on the motion for new trial, counsel for the State and appellant agreed that the hearing would proceed on the correctedCnot the originalCmotion. At the close of the hearing, the judge orally denied appellant=s corrected motion for new trial. No written order was ever entered on the original or corrected motions. Appellant complains of juror eleven=s failure during voir dire to disclose his wife=s uncle=s conviction of indecency with a child. Appellant claims he was harmed because he was denied the opportunity to challenge this juror for cause or to use a peremptory strike to remove him from the venire. He argues this juror=s silence vitiated his right to a fair trial. Accordingly, appellant concludes he was entitled to a new trial and claims the trial court abused its discretion in denying his request for a new trial. A trial court=s decision to deny a motion for new trial is reviewed for an abuse of discretion. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004); Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995); Brasher v. State, 139 S.W.3d 369, 373 (Tex. App.CSan Antonio 2004, pet. ref=d). With respect to oral questions asked during voir dire, error occurs when a prejudiced or biased juror is selected through no fault of or lack of diligence on the part of defense counsel. Gonzales v. State, 3 S.W.3d 915, 916 (Tex. Crim. App. 1999); Brasher, 139 S.W.3d at 373. A new trial is not warranted if the error did not result in harm. Gonzales, 3 S.W.3d at 917 n.2. It is not the mere failure to disclose information that warrants a new trial; rather, it is the chance that a biased individual came to serve through silence or deception that the law seeks to ameliorate. Ford v. State, 129 S.W.3d 541, 547 (Tex. App.CDallas 2003, pet. ref=d); Santacruz v. State, 963 S.W.2d 194, 197 (Tex. App.CAmarillo 1998, pet. ref=d). The voir dire process is designed to ensure that an intelligent, alert, disinterested, impartial, and truthful jury will perform the duties it is assigned. Armstrong v. State, 897 S.W.2d 361, 363 (Tex. Crim. App. 1995); Ford, 129 S.W.3d at 547. A juror who withholds material information during voir dire denies counsel the opportunity to exercise their challenges, thus hampering the selection of a disinterested and impartial jury. Franklin v. State, 12 S.W.3d 473, 477B78 (Tex. Crim. App. 2000); Salazar v. State, 562 S.W.2d 480, 482 (Tex. Crim. App. [Panel Op.] 1978). However, defense counsel must diligently ask questions calculated to bring out information revealing a juror=s inability to be impartial. Armstrong, 897 S.W.2d at 363B64. These questions must be specificCcounsel cannot rely on broad questions to satisfy this obligation. Gonzales, 3 S.W.3d at 917; Brasher, 139 S.W.3d at 374. Unless the attorney poses specific questions to the venire, any material information a juror fails to disclose is not Awithheld,@ and does not constitute misconduct. Jones v. State, 596 S.W.2d 134, 137 (Tex. Crim. App. 1980), overruled on other grounds, Sneed v. State, 670 S.W.2d 262, 266 (Tex. Crim. App. 1984); Armstrong, 897 S.W.2d at 364; Cuellar v. State, 943 S.W.2d 487, 491 (Tex. App.CCorpus Christi 1996, pet. ref=d). After reviewing the record, we find defense counsel did not ask the questions needed to elicit the conviction of juror eleven=s family member. On voir dire, defense counsel asked a broad question to a particular jury panel member: ACan you accept the proposition that people can be falsely accused of sexual assault of a child?@ Counsel then questioned whether any potential jurors Awould feel that because of the nature of the type of offense that they would think it=s just -- it=s not a type of offense where somebody can be falsely accused?@ Neither of these questions asked jurors to disclose whether family members had convictions for sexual assault of a child or similar crimes. Thus, no information was withheld that could constitute juror misconduct. See Armstrong, 897 S.W.2d at 364 n.2 (finding no juror misconduct where defense counsel did not ask the questions necessary to bring out information regarding a juror=s relationship with the county attorney); see also Gonzales, 3 S.W.3d at 918 (Ano questions were asked to determine whether prospective jurors who had not returned juror questionnaires had been involved in criminal cases@); Brasher, 139 S.W.3d at 374 (ANothing in the record indicates [the juror] would have withheld information . . . had counsel met his obligation to ask specific follow-up questions.@). Appellant correctly argues that he was entitled to rely on venire answers and discussions during State questioning. Armstrong, 987 S.W.2d at 364 n.1. Appellant complains juror eleven should have responded to the State=s question about family members accused of sexual assault of a child. However, the prosecutor did not ask the jury panel whether anyone had a family member with a conviction for sexual assault of a child. The State=s attorney specifically asked jurors whether Ayou, close friend or family member [were] either a victim of sexual assault or indecency by contact to the point where you don=t think you could be fair to [appellant] or it would in some way inhibit your judgment .@ (Emphasis added). The juror=s silence in response to this question does not show that he withheld material information. Similarly, the mere fact that other members of the venire chose to offer extraneous or unsolicited information at this time does not burden every venire member to do the same when counsel has not specifically requested such information. See Armstrong, 897 S.W.2d at 364 n.2 (explaining that the venire member=s role is to answer the questions asked, not to attempt to divine the intent of the questioner). Testimony at the motion for new trial hearing also shows that juror eleven did not withhold information. The State suggests, however, that no evidence from this hearing may be considered on appeal. The State argues that the district court lacked jurisdiction to hear the corrected motion for new trial so thatCalthough appellant timely filed an original motion for new trialCthe court had no power to hear the untimely corrected version. The Texas Rules of Appellate Procedure require a party to file all original or amended motions for new trial within thirty days after sentence is imposed by the court. Tex. R. App. P. 21.4(a), (b); see also Oldham v. State, 977 S.W.2d 354, 361 (Tex. Crim. App. 1998) (explaining that procedural provisions governing motions for new trial in a criminal case must be strictly complied with for the trial court to consider the motion). When an original or amended motion for new trial is filed after the statutory deadline, the trial court has no jurisdiction to consider the motion or to hold a hearing on the motion. Beathard v. State, 767 S.W.2d 423, 433 (Tex. Crim. App. 1989). Moreover, untimely motions for new trial, and any evidence supporting those motions, cannot form the basis for points of error on appeal. See Heckathorne v. State, 697 S.W.2d 8, 10 (Tex. App.CHouston [14th Dist.] 1985, writ ref=d) (explaining that evidence in support of an untimely amended motion for new trial may not be considered part of the record on appeal); see also Prudhomme v. State, 47 S.W.3d 683, 688 (Tex. App.CTexarkana 2001, pet. ref=d) (refusing to consider the record from a new trial hearing because appellant=s motion was untimely filed); Groh v. State, 725 S.W.2d 282, 285 (Tex. App.CHouston [1st Dist.] 1986, writ ref=d) (AAs appellant=s amended motion for new trial was untimely filed, we may not consider the testimony given at the hearing on that motion.@). As appellant=s corrected motion for new trial was filed after the statutory deadline, the trial court had no power to hear or rule on the corrected motion. Tex. R. App. P. 21.4(b); see also State v. Lewis, 151 S.W.3d 213, 218 (Tex. App.CTyler 2004, pet. ref=d) (stating no amendment of the motion for new trial may be made after thirty days following imposition of sentence, even with leave of court). Appellant, however, had already filed a timely motion for new trial. This motion empowered the court to hear any issues it raised. See Tex. R. App. P. 21.4(a). The motion hearing was held within seventy-five days of sentencing, and the hearing dealt only with issues raised in the original motion. The fact that the motion was later deemed denied under law does not make the hearing or the evidence presented within it invalid for appellate purposes. See Jaenicke v. State, 109 S.W.3d 793, 797 n.4 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d) (explaining evidence from hearing on timely filed motion for new trial may be heard on appeal despite motion being overruled by operation of law). Similarly, jurisdiction is not removed by the late filing of an amended motion for new trialCthe court simply has no power to hear any new issues it contains. See Lewis, 151 S.W.3d at 219 (explaining that a late amended motion for new trial cannot vest the trial court with jurisdiction over the issues included in the amended motion). Neither the fact that the attorneys agreed to hold the hearing Aon the corrected motion@ nor the judge=s oral denial of the corrected motion changes this result. As the State points out in its brief, because no written ruling was ever made, appellant=s timely June 14th motion was deemed denied by operation of law. Tex. R. App. P. 21.8(c). As the trial court had jurisdiction to hear the timely motion for new trial, this Court may consider evidence from the motion hearing on appeal. Juror eleven testified in the new trial hearing that he did not respond to the State=s question because he believed he could make a fair judgment based on the evidence. He also explained that his answer would be Ano,@ that his relative=s conviction would not inhibit his judgment or influence his fairness to appellant. He further testified that he was part of the same jury who acquitted appellant of indecency with a child, and that he maintained throughout deliberations that punishment should be assessed at twenty years= confinement (despite other jurors wanting to sentence appellant to ninety-nine years). The trial court considered this testimony and was entitled to be the sole judge of juror eleven=s credibility. Lewis, 911 S.W.2d at 7. More importantly, A[w]here there is conflicting evidence on an issue of fact as to jury misconduct, the trial judge determines the issue and there is no abuse of discretion in overruling the motion for new trial.@ Thomas v. State, 699 S.W.2d 845, 854 (Tex. Crim. App. 1985) (emphasis added); see also Beck v. State, 573 S.W.2d 786, 791 (Tex. Crim. App. 1978) (noting that, at a motion for new trial hearing, the trial judge has Athe right to accept or reject any part of@ a witness= testimony); Ford, 129 S.W.3d at 547 (holding that Awhere there is conflicting evidence on an issue of fact as to jury misconduct, the trial judge determines the issue@). Finding no error, we need not address whether appellant was harmed by the juror=s silence. Accordingly, the trial court did not abuse its discretion in declining appellant=s request for a new trial. The judgment of the trial court is affirmed. /s/ J. Harvey Hudson Justice Judgment rendered and Majority and Concurring Opinions filed November 23, 2005. Panel consists of Justices Hudson, Edelman, and Seymore. (Seymore, J., concurring). Do Not Publish C Tex. R. App. P. 47.2(b). [1] Sentence was imposed on May 14, 2004. The thirty-day deadline fell on Sunday, June 13, 2004; the motion was timely filed on Monday, June 14th. Dugard v. State, 688 S.W.2d 524, 529 (Tex. Crim. App. 1985), overruled on other grounds, Williams v. State, 780 S.W.2d 802, 803 (Tex. Crim. App. 1989) (holding motion for new trial was timely filed on the Monday following the thirtieth day after sentence was imposed). [2] Appellant filed a Acorrected@ motion for new trial after the statutory deadline. The corrected motion did not add or change any substantive argument. Rather, it was a verbatim copy of the original with only one sentence changed. The change concerned the necessity of a hearing when a proper affidavit is attached to the motion. AProsecutorial misconduct@ was changed to Ajury misconduct,@ and an incomplete sentence was finished. This was not a change of argumentCit was a misstatement of the law, as the case to which the changed sentence cited dealt with juror misconduct, not prosecutorial misconduct. While the corrected motion may have clarified this legal point, it did not alter the trial court=s jurisdiction over the timely motion for new trial and the issues it raised; nor did it attempt to bring new issues before the court.