Dissenting opinion issued March 29, 2002
In The
Court of Appeals
For The
First District of Texas
____________
NO. 01-99-01147-CR
____________
CARROLL DWAYNE YOUNG, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Cause No. 802,485
DISSENTING OPINION
In this case, one of the prospective jurors stated that she had worked with child sex abuse victims for almost 30 years, and, in her experience, she had never encountered a case in which a child had not been truthful about the abuse. Appellant immediately moved for a mistrial, asserting the prospective juror's statements had polluted the jury panel. Appellant claims the trial court exacerbated the situation by repeating the prospective juror's statements.
Because the record does not reveal the trial court's tone of voice, we cannot say that the trial court's comments were not expressing an incredulous tone thereby undermining, not reinforcing, the effect of the prospective juror's comments. This is not a case like Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000), in which the trial court's comments were not subject to different interpretations depending on the tone of voice used. We may disagree with the trial court's method of dealing with this situation, but, based on the state of the record before us, we are not in a position to evaluate whether an instruction to disregard would have cured any harm. If, as Blue emphasizes, a trial court's statements carry great weight with the venire, a trial court's instruction to disregard must be given at least equally great weight.
While the majority opinion finds inevitable distinctions, there certainly are cases in which instructions to disregard have cured very prejudicial statements during jury selection, at least one of which turned on the tone of voice used. See Cuellar v. State, 943 S.W.2d 487, 489-90 (Tex. App.--Corpus Christi 1996, pet. ref'd) (holding that instruction to disregard would have cured harm when, asked if anyone knew defendant, a veniremember responded, "Well, if he is the gang member in McAllen, yes. I mean, I don't know him, but I know the boy that he killed"; emphasizing tone of veniremember's response); McGee v. State, 923 S.W.2d 605, 607-08 (Tex. App.--Houston [1st Dist.] 1995, no pet.) (holding that instruction to disregard sufficient to cure harm from remark of veniremember who knew defendant and stated she knew he had prior convictions); White v. State, 910 S.W.2d 630, 632-34 (Tex. App.--Beaumont 1995, no pet.) (holding that instruction to disregard cured prejudice from prosecutor's statement during voir dire that evidence would show that appellant's cousin had been working in cooperation with appellant in commission of charged offense and had already pled guilty). Based on the record before us, I would hold that we simply do not know that this is a case in which an instruction to disregard, had it been requested, could not have cured the prejudice.
Accordingly, I respectfully dissent.
Tim Taft
Justice
Panel consists of Justices Taft, Brister (1)
, and Duggan. (2) En banc consideration was requested. A majority of the justices of the Court voted to consider the case en banc. The en banc court consists of Chief Justice Schneider, and Justices Cohen, Mirabal,
Wilson, Hedges, Taft, Nuchia, Jennings, Radack, Duggan, and Brister. Justice Taft, dissenting from the en banc decision. Justices Nuchia and Brister join
Justice Taft's dissenting opinion. Publish. Tex. R. App. P. 47.4.
1. 2.