AT AUSTIN
NO. 3-90-058-CR
NORMAN ODELL BROWN,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE DISTRICT COURT OF CALDWELL COUNTY, 22ND JUDICIAL DISTRICT
NO. 88-046, HONORABLE FRED A. MOORE, JUDGE PRESIDING
Appellant challenges his conviction for the felony of driving while intoxicated, third offense. He complains that, among other things, the trial court erroneously overruled his challenge for cause to a member of the venire. We reverse the conviction and remand this cause for further proceedings.
BACKGROUND
Appellant was indicted for the felony offense of driving while intoxicated (DWI). See Tex. Rev. Civ. Stat. Ann. art. 6701l-1(e) (Supp. 1991) (increasing punishment for three or more DWI offenses to felony level). In a felony DWI case, the prosecution must prove that the defendant has two or more prior DWI convictions. Id.
During voir dire, panel member Brewer indicated she would be unable to disregard appellant's prior convictions when determining his culpability for the present offense. When the trial court overruled appellant's challenge for cause to Brewer, appellant used a peremptory challenge to strike her. (1)
After the jury found appellant guilty, the trial court set appellant's punishment at five years' incarceration, probated, sixty days in jail as a condition of probation, and a fine of $1,000. Appellant challenges his conviction on the basis that the trial court erroneously overruled his challenge for cause against Brewer.
DISCUSSION AND HOLDING
1. Appellant Preserved Error
As an initial issue, we will address the State's contention that appellant did not preserve error regarding the trial court's failure to excuse Brewer for cause. Specifically, the State complains that appellant failed to allege some fact which rendered Brewer incapable or unfit to serve on the jury. See Tex. Code. Cr. P. Ann. art. 35.16(a) (1989); Tex. R. App. P. Ann. 52(a) (Pamph. 1990). We disagree.
A challenge for cause must inform the trial court of the basis for the objection, thereby affording the court an opportunity to rule on the challenge. Purtell v. State, 761 S.W.2d 360, 365 (Tex. Cr. App. 1988), cert. denied, 490 U.S. 1059 (1989). In addition, the challenge must give opposing counsel an opportunity to remove the objection or supply other testimony. Id. at 365-66. A challenge for cause is sufficient, therefore, if the basis for the objection is apparent from the context. See also Tex. R. App. P. 52(a).
Appellant leveled challenges for cause against Brewer and several other panel members on the ground that they had demonstrated an inability to set aside appellant's prior convictions. The trial court sustained appellant's objections to the other panel members, then called Brewer to the bench and asked her whether she could disregard the prior convictions. The prosecutor cross-examined Brewer along the same lines. Therefore, the ground for appellant's challenge to Brewer was readily apparent from the context. The State's contention is without merit.
2. The Trial Court Erred in not Excusing Panel Member Brewer
Appellant alleges that panelist Brewer was biased because she could not follow the trial court's instruction to disregard his prior convictions in determining his culpability for this offense. We agree.
In a criminal case, the trial court must excuse for cause a potential juror who has "a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely." Tex. Code Cr. P. Ann. art. 35.16(c)(2) (1989). A trial court generally may not exclude a panelist for cause if the panelist can set aside any bias or prejudice and fairly determine the issues. Hernandez v. State, 757 S.W.2d 744, 750 (Tex. Cr. App. 1988). When, however, a challenged panelist has demonstrated bias as a matter of law, the trial court must excuse the panelist even if the panelist purports to be able to set aside the bias and follow the law. Williams v. State, 565 S.W.2d 63, 65 (Tex. Cr. App. 1978). The erroneous overruling of a challenge for cause is per se harmful error. See Holloway v. State, 666 S.W.2d 104, 108 (Tex. Cr. App. 1984).
We have reviewed the record in this case and we conclude that panelist Brewer demonstrated bias as a matter of law. In response to direct questions from the court and from defense counsel, Brewer indicated that she could not put appellant's prior convictions out of her mind. When the trial court asked Brewer whether she could decide the case based only on the evidence of the subject DWI charge and without regard to the prior convictions, she answered, "No, I don't think I could." Later the trial court asked Brewer if she would use appellant's prior convictions to convict him in this case. She responded, "I think I would."
Moreover, even if Brewer were not biased as a matter of law, she never demonstrated an ability to follow the court's instructions and set aside her prejudices. When the prosecutor read the specific instruction regarding the prior convictions to Brewer and inquired whether she could follow it, her best response was "I think so." Accordingly, Brewer was never rehabilitated. Under these circumstances, the trial court erred in not excusing Brewer when appellant challenged her for cause.
The State insists that the question of whether Brewer was biased was one of fact for the trial court to decide. We must defer to a trial court's decision on a challenge for cause when the panelist gives conflicting answers or vacillates between different responses. White v. State, 779 S.W.2d 809, 820 (Tex. Cr. App. 1989), cert. denied, 110 S. Ct. 2575 (1990). This is because the trial court is in a position to assess the panelist's demeanor and sincerity. Id. In this case, Brewer did not vacillate, nor did her answers conflict. Rather, throughout the voir dire she maintained that the prior convictions would affect her. Consequently, we are not required to defer to the trial court's determination that Brewer was not biased.
CONCLUSION
We sustain appellant's first and second points of error. Accordingly, we reverse appellant's conviction and remand this cause for further proceedings. Because we resolve this appeal on these grounds, we will not reach appellant's other points of error. See Tex. R. App. P. Ann. 90(a) (Pamph. 1990).
____________________________________
Jimmy Carroll, Chief Justice
[Before Chief Justice Carroll, Justices Jones and B. A. Smith]
Reversed and Remanded
Filed: June 19, 1991
[Publish]\[Do Not Publish]
1. Appellant otherwise complied with the procedural steps for preserving error with respect to an overruled challenge for cause. See Harris v. State, 790 S.W.2d 568, 581 (Tex. Cr. App. 1989).