IN THE
TENTH COURT OF APPEALS
No. 10-05-00283-CR
Dustin Ray Nails,
Appellant
v.
The State of Texas,
Appellee
From the 78th District Court
Wichita County, Texas
Trial Court No. 42,010-B
MEMORANDUM Opinion
Nails pleaded guilty to aggravated robbery, burglary of a habitation, and felony theft, and elected to have his punishment assessed by a jury. See Tex. Penal Code Ann. § 29.03(a) (Vernon 2003), § 30.02(a), (d)(1) (Vernon 2003), § 31.03(a), (e)(4)(A) (Vernon Supp. 2005). Nails appeals his sentences. We affirm.
I
Challenges for Cause. In Nails’s first two issues, he contends that the trial court erred in overruling three challenges for cause. “A challenge for cause is an objection made to a particular juror, alleging some fact which renders the juror incapable or unfit to serve on the jury.” Tex. Code Crim. Proc. Ann. art. 35.16(a) (Vernon Supp. 2005).
1. Statutes. In Nails’s first issue, he argues under the Texas statutes. See Tex. Code Crim. Proc. Ann. art. 35.16 (Vernon Supp. 2005). “A challenge for cause may be made by either the state or the defense for . . . the . . . reason[] . . . [t]hat the juror has a bias or prejudice in favor of or against the defendant . . . .” Id. (a). “Bias” means “an inclination toward one side of an issue rather than to the other . . . (which) leads to the natural inference that (a juror) will not or did not act with impartiality.” Anderson v. State, 633 S.W.2d 851, 853 (Tex. Crim. App. [Panel Op.] 1982) (quoting Compton v. Henrie, 364 S.W.2d 179[, 182] (Tex. 1963)) (parenthetical material in Anderson). “Prejudice” means “prejudgment.” Id. (quoting Compton [at 182]). For example, “[i]n a situation where a prospective juror testifies that he or she believes a police officer would always tell the truth, . . . such a belief . . . constitute[s] a bias or prejudice against the defendant.” Montoya v. State, 810 S.W.2d 160, 171 (Tex. Crim. App. 1989). “Bias, by itself, is not sufficient for a challenge for cause. Instead, an appellant must show that the juror was biased to the extent that he or she was incapable of being fair.” Henson v. State, 173 S.W.3d 92, 99 (Tex. App.—Tyler 2005, pet. ref’d) (citing Anderson at 853).
“When bias or prejudice is not established as a matter of law, the trial court has discretion to determine whether bias or prejudice actually exists to such degree that a prospective juror is disqualified and that the challenge for cause should be sustained.” Little v. State, 758 S.W.2d 551, 556 (Tex. Crim. App. 1988). “When a prospective juror is shown to be biased as a matter of law, she must be excused when challenged, even if she states that she can set aside her bias and provide a fair trial.” Tran v. State, 167 S.W.3d 483, 487 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (citing Anderson, 633 S.W.2d at 854). “However, it is left to the discretion of the trial court to initially determine whether such a bias exists and the court’s decision will be reviewed in light of all of the answers given.” Id. (citing Anderson at 854). “We afford the trial court considerable deference, because it is in the best position to evaluate a prospective juror’s demeanor and responses.” Russeau v. State, 171 S.W.3d 871, 879 (Tex. Crim. App. 2005), cert. denied, No. 05-8398, 2006 U.S. LEXIS 5226 (June 30, 2006), & cert. denied, No. 05-856, 2006 U.S. LEXIS 5237 (June 30, 2006); accord Colburn v. State, 966 S.W.2d 511, 517 (Tex. Crim. App. 1998). “We will reverse a trial court’s ruling on a challenge for cause only if a clear abuse of discretion is evident.” Russeau at 879; accord Colburn at 517. “This is especially true when th[e c]ourt is faced with a vacillating or equivocating venireperson.” Banda v. State, 890 S.W.2d 42, 54 (Tex. Crim. App. 1994); accord Russeau at 879; Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. App. 2004). “[T]o ‘equivocate’ means to ‘avoid committing oneself in what one says.’” Smith v. State, 907 S.W.2d 522, 529 (Tex. Crim. App. 1995) (citing Webster’s Ninth New Collegiate Dictionary (1991)). “The trial court is able to consider important factors such as demeanor and tone of voice that do not come through when reviewing a cold record.” Banda at 54. “In determining whether the trial court abused its discretion in ruling on a challenge for cause, . . . we review the voir dire record in its entirety and ask whether the court had a rational basis for its conclusions.” Granados v. State, 85 S.W.3d 217, 229 (Tex. Crim. App. 2002).
“[D]efense counsel has an obligation to ask questions calculated to bring out that information which might be said to indicate a juror’s inability to be impartial, truthful, and the like.” Barajas v. State, 93 S.W.3d 36, 41 (Tex. Crim. App. 2002) (quoting Gonzales v. State, 3 S.W.3d 915, 917 (Tex. Crim. App. 1999)); cf. Loredo v. State, 159 S.W.3d 920 (Tex. Crim. App. 2004).
Nails complains of three veniremen: Green, Cunningham, and McClard.
1. a. Green
As to Green, Nails points to the only voir-dire examination of him, by the prosecutor, Barber.
[MR. BARBER:] [A]nybody on this panel related to somebody in the law enforcement field, like a jailer or FBI agent, anybody like that, a jailer out at—or a prison guard, anybody like that? . . . .
. . . .
VENIREPERSON GREEN: . . . . I worked for the sheriff’s office in Lamar County for three and a half years while I was going through college.
MR. BARBER: . . . . Do you feel like you could sit in a criminal case and be fair and impartial to both sides, or do you feel like your experiences would cause you to be biased?
VENIREPERSON GREEN: I think I’d be a little biased.
(2 R.R. 33, 36.)
Nails’s counsel, Odiorne, objected to Green, and the following colloquy occurred:
MR. ODIORNE: No. 40, Mr. Green, . . . indicated due to his past experience working with the Sheriff’s Department, he would be biased towards the State in this case.
MR. BARBER: I think he said he might be, Judge. I’m not sure that he—I think it was vague, but I’ll rely on your notes.
THE COURT: I think—it seemed to be vague to me. I’m going to overrule as to 40.
(2 R.R. 144.)
The trial court did not clearly abuse its discretion in finding that Green was not biased to the extent of being incapable of being fair.
1. b. Cunningham
In response to the same question, Cunningham testified as follows on examination by the State:
VENIREPERSON CUNNINGHAM: I actually used to work with the police department in Los Angeles.
MR. BARBER: I take it, you were a police officer?
VENIREPERSON CUNNINGHAM: Yes.
MR. BARBER: Let me ask you about that. Do you feel like based on your exposure and having to do what you did, do you feel like you could sit in a criminal case and listen to the evidence and be fair on both guilt and innocence and/or punishment?
VENIREPERSON CUNNINGHAM: Probably not.
(2 R.R. 35.) Nails does not point to any questions that he asked Cunningham, or to any other testimony by Cunningham.
Nails objected to Cunningham, and the following colloquy occurred, in which Barber referred to his assistant’s notes:
MR. ODIORNE: . . . . No. 21, Mr. Cunningham, said he could not be fair in this case.
MR. BARBER: Dobie’s notes said probably not fair on guilt, so I don’t know—I don’t remember what he said exactly but that’s what Dobie’s notes say.
THE COURT: Well, he seemed to leave some room there probably in different things. I don’t think that was clear. I’m going to overrule that one.
(2 R.R. 141.)
The trial court did not clearly abuse its discretion in finding that Cunningham was not biased to the extent of being incapable of being fair.
1. c. McClard
As to McClard, Nails points to the following testimony:
MR. BARBER: . . . . If you’re selected as a juror, you’ve got to decide this case solely on the evidence that you hear and not—and whatever instructions the Court may give you as to the law. Do you feel like you could sit and listen to the evidence and decide the case solely on the evidence and be fair to both sides?
. . . .
. . . . Mr.—is it McClard?
VENIREPERSON McCLARD: McClard.
MR. BARBER: McClard.
VENIREPERSON McCLARD: Yes, my sister and her family had their car broken into during Christmas and everything stolen and all that.
MR. BARBER: Anything about that experience that would keep you from being fair in this case?
VENIREPERSON McCLARD: I would say the way things were handled. The officers didn’t really check anything. He just kind of came through and said, Oh, there’s nothing we can do.
MR. BARBER: So you were kind of upset with them?
VENIREPERSON McCLARD: A little bit.
(2 R.R. 43-44.) Nails does not point to any questions that he asked McClard, or to any other testimony by McClard.
Nails objected to McClard, and the following colloquy took place:
MR. ODIORNE: No. 16, Mr. McClard said he could not be fair in this case.
MR. BARBER: I don’t have a note of that, Judge. Dobie doesn’t have a note of that. I don’t know if he said it or not.
THE COURT: I had that he said some things that he may be impartial but was pretty vague, so I’m going to overrule the challenge as to 16.
(2 R.R. 139-40.)
The trial court did not clearly abuse its discretion in finding that McClard was not biased to the extent of being incapable of being fair.
2. Constitution. In Nails’s second issue, he argues under the Texas Constitution. See Tex. Const. art. I, §§ 10, 19. Nails forfeits that argument.
“As a prerequisite to presenting a complaint for appellate review, the record must show that . . . the complaint was made to the trial court . . . .” Tex. R. App. P. 33.1(a). “Except for complaints involving systemic (or absolute) requirements, or rights that are waivable only . . . all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a).” Neal v. State, 150 S.W.3d 169, 175 (Tex. Crim. App. 2004) (quoting Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004)) (ellipsis in Neal); accord Marin v. State, 851 S.W.2d 275, 277-80 (Tex. Crim. App. 1993). Rule 33.1 is a “‘judge-protecting’ rule[] of error preservation.” Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005) (quoting Martinez v. State, 91 S.W.3d 331, 335 (Tex. Crim. App. 2002)). “[T]he party complaining on appeal . . . about a trial court’s admission, exclusion, or suppression of evidence must, at the earliest opportunity, have done everything necessary to bring to the judge’s attention the evidence rule or statute in question and its precise and proper application to the evidence in question.” Id. (quoting Martinez at 335-36). “The issue . . . ‘is . . . whether the complaining party on appeal brought to the trial court’s attention the very complaint that party is now making on appeal.’” Id. (quoting Martinez at 336).
Nails does not indicate that he presented his constitutional arguments to the trial court. Accordingly, Nails forfeits those arguments.
We overrule Nails’s first and second issues.
II
Motion for Mistrial. In Nails’s third issue, he contends that the trial court erred in overruling a motion for mistrial. “A mistrial is the trial court’s remedy for improper conduct that is ‘so prejudicial that expenditure of further time and expense would be wasteful and futile.’” Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)).
Nails complains concerning the following italicized argument by the State:
Why would we put him on probation? He violated his parole, folks. Why would we put him back on probation? What message would it send to him if you gave him probation? He’s been through the system. Remember, [one witness] told you they learn how to manipulate the system. What message are you going to send to him if he can continue to get worse and worse and commit a violent crime and then you send a message to him, We’re going to let you back on the street?
That’s going to send a bad message. It’s going to cause that antisocial trait, I believe, to be reenacted again because nothing’s going to happen to him.
(5 R.R. 88.)[1] Thereafter, the following colloquy occurred:
MR. ODIORNE: Your Honor, I think that’s an improper speculation. There’s no evidence for that foundation.
THE COURT: Sustained.
MR. ODIORNE: Ask that the jury be instructed to disregard the remark of counsel.
THE COURT: Jury is instructed to disregard the last statement.
MR. ODIORNE: And respectfully move for a mistrial.
THE COURT: Denied.
(5 R.R. 88.)
“Proper jury argument includes four areas: (1) summation of the evidence presented at trial, (2) reasonable deduction drawn from that evidence, (3) answer to the opposing counsel’s argument, or (4) a plea for law enforcement.” Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000); accord Alejandro v. State, 493 S.W.2d 230, 231-32 (Tex. Crim. App. 1973). We assume without deciding that the argument was improper. See Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).
“[Wh]ere[] the trial court sustain[s] the defense objection and grant[s] the requested instruction to disregard,” “[t]he only adverse ruling—and thus the only occasion for making a mistake—[i]s the trial court’s denial of the motion for mistrial.” Hawkins, 135 S.W.3d at 76, 76-77. “Under those circumstances, the proper issue is whether the refusal to grant the mistrial was an abuse of discretion.” Id. at 77. “An appellate court reviewing a trial court’s ruling on a motion for mistrial must utilize an abuse of discretion standard of review . . . .” Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004); see Russeau, 171 S.W.3d at 885. We “must uphold the trial court’s ruling if that ruling was within the zone of reasonable disagreement.” Wead at 129; see Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App.), cert. denied, 126 S. Ct. 481 (2005); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g). “Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required.” Hawkins at 77. “On appeal, we generally presume the jury follows the trial court’s instructions in the manner presented.” Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005); see id. n.10; accord Dinkins v. State, 894 S.W.2d 330, 356 (Tex. Crim. App. 1995).
In evaluating whether the trial court abused its discretion in overruling a motion for mistrial in the punishment phase of trial, “[w]e balance three factors: (1) the severity of the misconduct (prejudicial effect), (2) curative measures, and (3) the certainty of the punishment assessed absent the misconduct (likelihood of the same punishment being assessed).” Hawkins, 135 S.W.3d at 77.
Nails contends, “The nature of the error was such that an instruction could not cure it.” (Br. at 14 (citing Fletcher v. State, 852 S.W.2d 271, 275 (Tex. App.—Dallas 1993, pet. ref’d)).)
The severity of the misconduct, assuming that the argument was improper, was not great. The State’s argument that probation was not an effective deterrent for Nails, who had violated his parole after having been previously sentenced to imprisonment, arguably constituted a plea for law enforcement and a reasonable deduction from the evidence. As to curative measures, the trial court’s instruction was unexceptional. As to the certainty of the punishment assessed, Nails concedes that the punishment was “on the lower side of the statutory range of punishment.” (Br. at 15.) The jury assessed Nails’s punishment at 14 years’ imprisonment and a fine of $1000 in the count of aggravated robbery, a first-degree felony in which the range of punishment was imprisonment for from 5 to 99 years or for life and a fine of up to $10,000. See Tex. Penal Code Ann. §§ 12.32, 29.03(b) (Vernon 2003). The jury assessed Nails’s punishment at 2 years’ imprisonment and no fine in the count of burglary of a habitation with intent to commit theft, a second-degree felony in which the range of punishment was imprisonment for from 2 to 20 years and a fine of up to $10,000. See id. §§ 12.33, 30.02(c)(2) (Vernon 2003). The jury assessed Nails’s punishment at 2 years’ imprisonment and no fine in the count of state-jail-felony theft, in which the range of punishment was imprisonment for from 180 days to 2 years and a fine of up to $10,000. See id. § 12.35(a)-(b) (Vernon 2003), § 31.03(e)(4)(A). Nails pleaded guilty to the home-invasion burglary and aggravated robbery of an elderly woman, including striking her in the face with a metal can. Nails’s criminal history included several juvenile adjudications, including commitment to the Texas Youth Commission. Nails’s punishment was not likely to have been substantially less absent the State’s argument. Accordingly, the trial court did not abuse its discretion in overruling Nails’s motion for mistrial. We overrule Nails’s third issue.
III
CONCLUSION. Having overruled Nails’s issues, we affirm.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Justice Vance concurs in the judgment with a note)*
Affirmed
Opinion delivered and filed July 26, 2006
Do not publish
[CR25]
*(Note by Justice Vance: “I do not join the majority opinion for several reasons. First, we have recently written extensive, published opinions on the review of the failure to grant a mistrial. See Perez v. State, 187 S.W.3d 110, 112-15 (Tex. App.—Waco 2006, no pet. h.); Lewis v. State, 191 S.W.3d 335, 338-40 (Tex. App.—Waco 2006, pet. filed). We should cite our own authority, when applicable. Second, I would not rely on Henson v. State to set the standard for proving bias. Third, the opinion summarily decides that a constitutional issue was not preserved, without even identifying the provision relied on by Nails.”)
[1] The State argues that Nails forfeited his complaint concerning the first argument concerning which Nails complains by not objecting timely. See Tex. R. App. P. 33.1(a); Aguilar v. State, 26 S.W.3d 901, 904-905 (Tex. Crim. App. 2000). We assume without deciding that Nails preserved his complaint.