Opinion issued September 20, 2007
In The
Court of Appeals
For The
First District of Texas
NO. 01-06-00480-CR
LING-HUI HO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from County Criminal Court at Law No. 10
Harris County, Texas
Trial Court Cause No. 1357447
MEMORANDUM OPINION
A jury convicted appellant, Ling-Hui Ho, of prostitution, and the trial court assessed punishment at 25 days' confinement in jail. See Tex. Pen. Code. Ann. § 43.02 (Vernon Supp. 2006). Presenting one point of error, appellant contends that the trial court erred by granting the State's challenge for cause to a veniremember.
We affirm.
Background
Appellant was charged by information with the misdemeanor offense of prostitution. The case was set for a jury trial. During voir dire, after the State and the defense had each exhausted its three respective peremptory strikes, the trial court granted the State's request to strike Venireman Number 10 for cause. The defense objected to the striking of Venireman Number 10. The defense requested an additional peremptory strike asserting that the trial court had given the State an additional strike by granting its challenge to Venireman Number 10. The trial court denied appellant's request for an additional strike. After the jury was seated, the defense objected to the composition of the jury. Appellant contended that, if the trial court had granted him an additional strike, he would have stricken Venireman Number 11, who was seated on the jury.
State's Challenge to Venireman Number 10
In his sole point of error, appellant contends that the trial court erroneously granted the State's challenge for cause to Venireman Number 10.
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 veniremember's demeanor and responses. Blue v. State, 125 S.W.3d 491, 497 (Tex. Crim. App. 2003). We will reverse a trial court's ruling on a challenge for cause "only if a clear abuse of discretion is evident." Id.
Article 35.16 of the Code of Criminal Procedure provides that a challenge for cause may be made by the State if a potential juror has a bias or prejudice against any phase of the law on which the State is entitled to rely for conviction or punishment. Tex. Code Crim. Proc. Ann. art. 35.16(b)(3) (Vernon 2006). Here, Venireman Number 10 indicated during voir dire that he believed prostitution should be legal. In this regard, the following exchange occurred between the prosecutor and Venireman Number 10:
[Prosecutor]: I just want to ask you two questions. The first is about prostitution being legal. Do you think it should be legal?
[Venireman Number 10]: I think it would solve a lot of problems. Yes.
[Prosecutor]: Do you feel strongly about that?
[Venireman Number 10]: Yes. I feel strongly.
[Prosecutor]: Do you think that your view that prostitution should be legal would affect your ability to decide this case?
[Venireman Number 10]: Probably.
Later in the voir dire process, the following exchange occurred between defense counsel and Venireman Number 10:
[Defense counsel]: [Venireman Number 10], you follow the law. Don't you?
[Venireman Number 10]: Yes. I mean, I drive on 59 with the flow of traffic.
[Defense counsel]: But, regardless of what you think of the law, you follow it. Don't you?
[Venireman Number 10]: I believe in the rule of the law.
[Defense Counsel]: So, when the Legislature makes prostitution illegal, you're not saying you disagree with that. Correct?
[Venireman Number 10]: I do disagree with that.
[Defense Counsel]: And, in fact, you disagree with it strongly.
[Venireman Number 10]: Yes. I do.
[Defense Counsel]: But, you understand that as of the date of this alleged offense, and even today, prostitution is illegal in the state of Texas. Do you agree with that?
[Venireman Number 10]: I understand that's the law. Yes.
[Defense Counsel]: And if the judge so instructed you, you could follow the law regarding prostitution. Correct?
[Venireman Number 10]: That's a tough one. I appreciate judges and would follow their instructions. But, I also feel that citizens have to follow their hearts, too. It's a difficult call.
THE COURT: So, you're saying that if you don't agree with something, you would, basically, nullify . . . If you felt sorry for somebody, you would find them not guilty?
[Venireman Number 10]: I would put it more like I would want to be more participatory, instead of just listening. I want to be the person asking the questions. To satisfy my own . . . to make a judgment as opposed to, having a prosecutor and defense attorney ask. But, I know that's not the way it works.
When the record does not contain a clearly objectionable declaration by the venireperson, or the record demonstrates a vacillating or equivocal venireperson, 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). In this case, the record reflects that Venireman Number 10 expressed strong personal feelings that prostitution should be legal. He equivocated regarding whether he could put aside his biases and personal beliefs and follow the legal mandates of the Texas Legislature regarding prostitution. We hold that, based on his equivocal responses regarding his ability to follow the law, the trial court did not clearly abuse its discretion by granting the State's challenge for cause to Venireman Number 10. We overrule appellant's sole issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Taft, Hanks, and Higley.
Do not publish. Tex. R. App. P. 47.2(b).