Affirmed and Memorandum Opinion filed April 18, 2013.
In The
Fourteenth Court of Appeals
NO. 14-11-00945-CR
JEFFERY NEIL MALNAR, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Cause No. 1253795
MEMORANDUM OPINION
Appellant Jeffery Neil Malnar, Jr., appeals his conviction of the state-jail
felony offense of injury to a child by criminal negligence, challenging the
sufficiency of the evidence to support his conviction and asserting the trial court
erred in denying his challenge for cause to a veniremember. We affirm.
BACKGROUND
Appellant was charged by indictment with the offense of felony murder
based upon the commission of the offense of injury to a child through intentional,
knowing, reckless, or criminally negligent conduct, resulting in the child’s death.
Appellant pleaded not guilty to the charged offense.
The record from trial reflects that the five-month-old child complainant and
his mother Kendra had recently met appellant in Conroe, Texas, where appellant
lived. According to the record, appellant spent a weekend with Kendra and the
child in the maternal grandmother’s home in Seabrook, Texas, around February 12,
2010. Kendra recalled being in the kitchen and hearing a “thump” on Friday or
Saturday when appellant was in Kendra’s room, holding the child. When Kendra
investigated the sound, appellant indicated he had been rocking the child and the
child hit his head on the wall. The child did not cry and did not appear to have
signs of injuries. On the next morning, Sunday, February 14, the mother
discovered the child was breathing heavily, acting lethargic, and had limp limbs.
The child was taken to the hospital, where appellant was adamant about being with
the child in the examination room and explained to doctors that the child had cried
a lot in the night. The child was diagnosed with a urinary tract infection,
prescribed antibiotics, and discharged. Appellant returned to his home in Conroe
the next day.
The child continued to experience problems with vomiting, lack of appetite,
and diarrhea. His eyes appeared to cross. He received medical care on February
16 at another area hospital, which diagnosed him with an abdominal infection and
discovered that the child was previously misdiagnosed with a urinary tract
infection. The child received follow-up care from his pediatrician two days later.
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Although the child’s eyes still remained crossed, he was active, ate well, and
played.
On the weekend of February 26, 2010, appellant again visited the child and
Kendra at the maternal grandmother’s home. The record reflects that Kendra did
not want appellant to visit that weekend because she wanted to talk with a former
boyfriend, for whom she still had feelings. Several witnesses noted how attentive
appellant was toward the child. On the evening of February 27, the child awoke
and cried in the night and Kendra gave appellant a bottle to feed the child; Kendra
went back to sleep. Kendra woke up an hour later and saw appellant attempting to
delete something, perhaps text messages from the former boyfriend, from her cell
phone. The following morning, Kendra woke up later and observed appellant
holding the child and walking in and out of the bedroom several times; she then
heard the child whimper and took the child in an attempt to comfort him back to
sleep. Later on that morning, the child cried loudly and would not open his eyes or
eat; the record reflects that he also had stopped breathing momentarily and was
lethargic. Kendra took the child to a hospital, where she also spoke with a police
officer. The child was transported by life flight to a children’s hospital.
CT scan images taken at the children’s hospital showed blood on the child’s
brain that was less than seven to ten days old, possibly only hours old. It also
showed multiple areas of dead brain tissue. Some of the child’s injuries may have
been more than a few days and less than one month old. The child also presented
with severe retinal eye damage and hemorrhaging, likely resulting from high-
velocity head trauma akin to a high-velocity motor vehicle accident. One doctor
opined that the retinal injury and bleeding on the child’s brain was the result of
being shaken with an amount of force so great that a reasonable person would have
recognized it as harmful to the child.
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Eventually Kendra learned that the child’s skull was fractured; the child was
unable to see, hear, or feed himself and began experiencing seizures. He remained
in an intensive care unit for several weeks before he was transferred to another
medical facility for rehabilitative care. Although the child was conscious and alert,
he did not smile; he was blind and doctors had found blood in the back of the
child’s eyes. The child remained at a rehabilitative care home for a couple of
weeks until his health declined again. The record reflects that the child was
experiencing fevers and seizures that caused his brain to bleed more. He returned
to a hospital and received hospice care until he died on May 11, 2010.
Autopsy reports reflect that the child died from complications following
blunt force trauma to his head. A medical examiner opined that the child’s
symptoms of vomiting, diarrhea, decreased appetite, and lethargy—as exhibited at
the hospitals on both February 14, 2010, and February 16, 2010—were consistent
with brain injury. According to the medical examiner, the symptoms of lethargy,
limp body, whining, and breathing irregularities—as exhibited at the hospital on
February 28, 2010—were also consistent with brain damage. The medical
examiner testified that the child had bleeding and cerebral spinal fluid in his brain,
bruises to the front and back of the brain, and evidence of two skull fractures, one
of which showed signs of healing. Based on the location of the fractures, the child
sustained impact to the back of his head and to the left side of his head. The
examiner opined that a minimum of two separate impacts to the child’s head
possibly occurred around February 14 and again on or before February 28 and that
none of the injuries were caused by an illness or infection. An additional tibia
fracture was also discovered; the medical examiner opined that the fracture was
unlikely accidental given the child’s age and abilities. By early March 2010, the
child’s brain had eventually swollen to the point that he had no blood flow,
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indicative of brain death, and he died two months later. The medical examiner
believed the child’s death was a homicide. The medical examiner and a physician
who treated the child ruled out hypothetical scenarios, involving a short fall of
several feet or an accidental head-strike on a door frame, wall, door, or a crib rail,
none of which would have caused a fatal fracture.
A law enforcement officer was assigned to the case on February 28, 2010,
and spoke with a doctor who treated the child and interviewed family members.
During the officer’s interview with Kendra, appellant contacted Kendra multiple
times by text or telephone; during one phone call, the officer informed appellant
that he wanted to speak with him. Eventually, the officer met with appellant in a
non-custodial interview. In a videotaped interview with appellant, the officer
asked for more information about the child’s condition, which the officer called an
“accident.” At first, appellant denied knowing anything that happened to the child
that could have caused the child’s injuries. During the recorded interview, which
was played for the jury, appellant admitted that, on the weekend of February 14,
2010, the child hit his head on a wall, resulting in a sound loud enough to alert
Kendra to investigate. When pressed for more information, appellant later stated
that he had repeatedly gotten up in the night to help care for the crying child on
February 28, 2010, and that he had bumped the left side and back side of the
child’s head into the door or door frame and that the child also had “wiggled” from
appellant’s grasp, fell, and hit the wooden crib rail, resulting in a “thump” loud
enough to wake Kendra. Appellant did not inform others of what had happened
even though the child required medical care following these incidents. Charges
were subsequently filed against appellant.
Appellant called a forensic anthropologist, who assisted in the child’s
autopsy, to testify. She observed that the child had two skull fractures, which
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suggested two separate impacts from non-accidental trauma. The anthropologist
testified that the fractures likely occurred around February 28, 2010. She did not
observe any tibia fracture, but she acknowledged the possibility that a fracture
existed at one time and had healed significantly.
Appellant testified that he did not shake the child. He denied hitting the
child on the head or anywhere else with any object. Appellant denied intentionally
or knowingly hurting the child, claiming that he never dropped the child or threw
him against a wall. Appellant testified to his remorse that he caused the child’s
head to strike “those things,” but he asserted that he did not believe the child’s
injuries came from his conduct. Appellant testified that, while caring for the child
during the night of February 27 and 28, 2010, there were two “head-bump
incidents” that he did not tell Kendra about because they seemed “insignificant.”
Appellant confirmed that he had admitted to the officer that the child hit his head
“pretty hard” in two of the “head bump” incidents. Appellant testified that when
he returned to Conroe on February 28, 2010, he and his brother had an altercation
in which he sustained a head injury; he was rendered unconscious and received
medical care later that day. Although appellant knew to seek treatment for his own
head injuries, he testified that he did not feel it was important to tell Kendra about
the “head bump” incidents.
In its charge, the trial court instructed the jury regarding felony murder
based on injury to a child through intentional, knowing, reckless, or criminally
negligent conduct. The court also included an instruction on the lesser-included
offense of bodily injury to a child by criminal negligence. The jury convicted
appellant of the lesser-included offense. Appellant was sentenced to two years’
confinement.
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ANALYSIS
I. Sufficient evidence supports appellant’s conviction.
In his second issue, appellant challenges the evidence to support his
conviction for the offense of bodily injury to a child by criminal negligence. In
evaluating such a challenge, we view the evidence in the light most favorable to
the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The
issue on appeal is not whether we, as a court, believe the State’s evidence or
believe that appellant’s evidence outweighs the State’s evidence. Wicker v. State,
667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned
unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson
v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The trier of fact “is the
sole judge of the credibility of the witnesses and of the strength of the evidence.”
Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The trier of fact
may choose to believe or disbelieve any portion of the witnesses’ testimony.
Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with
conflicting evidence, we presume the trier of fact resolved conflicts in favor of the
prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).
Therefore, if any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939
S.W.2d 607, 614 (Tex. Crim. App. 1997).
A majority of the judges of the Court of Criminal Appeals have determined
that “the Jackson v. Virginia legal-sufficiency standard is the only standard that a
reviewing court should apply in determining whether the evidence is sufficient to
support each element of a criminal offense that the State is required to prove
beyond a reasonable doubt.” Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim.
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App. 2010) (plurality op.) (Hervey, J., joined by Keller, P.J., and Keasler and
Cochran, JJ.); id. at 912–15 (Cochran, J., concurring, joined by Womack, J.)
(same). Therefore, we will review the evidence under the Jackson v. Virginia
standard as articulated in the preceding paragraph.
The State charged appellant with felony murder based upon the commission
of the felony offense of injury to a child by intentional, knowing, reckless, or
criminally negligent conduct, to wit: shaking the child complainant with
appellant’s hand and causing the child complainant’s head to strike an object,
resulting in the child’s death. The jury was also charged on the lesser-included
offense of bodily injury to a child through criminal negligence, and it convicted
appellant of that offense. A person commits the lesser-included offense if, by the
person’s act, the person intentionally, knowingly, recklessly, or with criminal
negligence causes bodily injury to a child. See Tex. Penal Code Ann. § 22.04(a)(3)
(West 2011). A “child” is a person fourteen years of age or younger. See id. §
22.04(c)(1). The term “bodily injury” refers to “physical pain, illness, or an
impairment of physical condition.” Id.. § 1.07(a)(8) (West 2011).
A person acts with criminal negligence, or is criminally negligent,
with respect to circumstances surrounding his conduct or the result of
his conduct when he ought to be aware of a substantial and justifiable
risk that the circumstances exist or the result will occur. The risk
must be of such a nature and degree that the failure to perceive it
constitutes a gross deviation from the standard of care that an ordinary
person would exercise under all circumstances as viewed from the
actor’s standpoint.
Tex. Penal Code Ann. § 6.03(d) (West 2011). Injury to a child, either by omission
or overt action, is a “result of conduct” offense such that the culpable mental state
relates not to the nature or circumstances of the charged conduct, but to the result
of that conduct. Kelley v. State, 187 S.W.3d 761, 763 (Tex. App.—Houston [14th
8
Dist.] 2006, pet. ref’d). In sum, the accused must have acted with the requisite
mental state to effect the result. See id. Mental culpability can be inferred from
circumstances of the act, from words, or from the extent of the injury and the
relative size and strength of the parties. Id. Likewise, the extent of a
complainant’s injuries is a reflection of the strength of a defendant’s conduct. See
id. The key to criminal negligence is not the actor’s awareness and disregard of a
substantial risk, but rather the actor’s failure to perceive the risk at all. See
Montgomery v. State, 369 S.W.3d 188, 193 (Tex. Crim. App. 2012).
To be sufficient to support appellant’s conviction, the record evidence must
show that appellant should have been aware of the substantial and justifiable risk
that his conduct would cause the child physical pain, illness, or an impairment of
physical condition. See Tex. Penal Code Ann. §§ 1.07(a)(8), 6.03(d), 22.04(a)(3);
Montgomery, 369 S.W.3d at 193. Appellant asserts that the evidence showed the
child’s injuries could only have been caused by an intentional act, and there is no
evidence they could have been caused by a negligent act or that he should have
been aware of a substantial and justifiable risk that the child’s injuries would
occur. We disagree.
The record reflects that appellant interacted alone with the child on February
14, 2010, and February 28, 2010. Doctors testified that the child suffered two
separate injuries to his head around these same dates. On the first of these two
occasions, the evidence shows that appellant had been rocking the child and the
child struck his head on the wall; Kendra heard and investigated a “thump.” On
the second occasion, the evidence shows that appellant bumped the left side and
back side of the child’s head into the door or door frame and again on a crib rail,
which resulted in a loud enough “thump” to wake Kendra. Appellant admitted two
of the “head bump” incidents, stated that the child’s head hit “pretty hard,” and
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expressed remorse at trial that he caused the child to strike his head. The record
shows that the child cried or whimpered in the hours after the incidents and
exhibited other symptoms requiring medical care. The record also shows that the
child sustained bleeding and bruises to his brain, retinal damage, and two skull
fractures stemming from at least two separate incidents. See Kelley, 187 S.W.3d at
763 (considering evidence of retinal damage from a “severe blow to the head” as
part of sufficiency analysis for injury to a child). According to the testimony of a
medical expert, the child’s symptoms of vomiting, diarrhea, decreased appetite,
and lethargy—as exhibited on February 14, 2010—were consistent with brain
injury. Likewise, the medical expert testified that the child’s symptoms including
lethargy, limp body, whining, and breathing irregularities—as exhibited on
February 28, 2010—were also consistent with brain trauma. Medical experts ruled
out scenarios involving a short fall or accidental head-strikes, as described by
appellant, none of which could have caused the same injuries and fatal fractures
that the child sustained. See id. (considering medical expert testimony that
discredited theories of an accidental injury to a baby as part of sufficiency
analysis).
Given this evidence, including the testimony of the physician and the
medical examiner, the facts surrounding the circumstances in which the child was
in appellant’s care, the relative size of a five-month-old child, appellant’s own
statements about the child’s “head bumps,” and the child’s symptoms and medical
treatment following the “head bumps,” appellant should have known there was a
substantial and justifiable risk that his conduct in causing the child to strike his
head against hard objects or surfaces would cause the child physical pain, illness,
or an impairment of his physical condition. Tex. Penal Code Ann. § 1.07(a)(8);
see Montgomery, 369 S.W.3d at 193 (concluding that elements of criminal
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negligence were met in a criminally negligent homicide); Kelley, 187 S.W.3d at
764 (concluding evidence was sufficient to support reckless bodily injury to a
child).
Appellant acknowledged that while he did not feel it was important to tell
Kendra about the five-month-old child complainant bumping his head, appellant
felt it was necessary to go to the hospital for his own head injury that he sustained
on the evening of February 28, 2010. If on February 14, 2010, appellant was not
aware of the substantial and justifiable risk of bodily injury that a five-month-old
child would sustain if his head hit a hard surface, appellant ought to have been
aware of that risk on February 28. See Montgomery, 369 S.W.3d at 193 (noting
criminal negligence involves an accused that ought to have been aware of a
substantial and justifiable risk that the conduct could result in the type of harm that
occurred). Given the circumstances, a jury could reasonably have concluded that
appellant ought to have been aware of the substantial and justifiable risk of harm to
the child that his actions created. See id. at 194. The risk of the child’s injuries
was of such a nature that appellant’s failure to perceive the risk was a gross
deviation from the reasonable standard of care exercised by most people. See id.
A jury reasonably could have found that appellant’s failure to appreciate the
substantial and justifiable risks, given the circumstances known to him at the time,
was a gross deviation from the standard of care that an ordinary person would
exercise under the same circumstances. See id.
Regarding appellant’s assertion that the evidence supports only intentional
conduct, record evidence does show that the child’s injuries were non-accidental.
But proof of a greater level of culpability necessarily constitutes proof of a less
culpable mental state, such that evidence of intentional conduct is also evidence of
criminal negligence. See Hicks v. State, 372 S.W.3d 649, 653–54 (Tex. Crim. App.
11
2012). Appellant also asserts that by finding appellant guilty of the lesser-included
offense, the jury categorically rejected the State’s contention that appellant had
intentionally or knowingly caused the injuries to the child, as required by the
greater offense charged. But appellant’s argument does not affect our sufficiency
analysis regarding whether the evidence supports his conviction for injury to a
child through criminal negligence. See Moranza v. State, 913 S.W.2d 718, 724
(Tex. Crim. App. 1995) (holding that when jury renders inconsistent verdict,
“instead of summarily finding the evidence legally insufficient to support the jury’s
verdict of guilt, an appellate court should examine the legal sufficiency of the
evidence to support the counts on which the conviction was rendered”).
Viewing the evidence under the prevailing standard, the jury could have
found beyond a reasonable doubt that appellant caused the child bodily injury by
criminal negligence. See Tex. Penal Code Ann. §§ 6.03(d), 1.07(a)(8). We
therefore hold that the record contains sufficient evidence to support the
appellant’s conviction of bodily injury to a child through criminal negligence, and
we overrule appellant’s second issue.
II. The trial court did not err in denying appellant’s challenge for cause.
In his first issue, appellant complains of a veniremember’s response relating
to the range of punishment for felony murder. The record shows that the trial court
informed the venire that the offense of felony murder carries a range of punishment
from five years to ninety-nine years’ confinement. The court asked each row of
the venire collectively whether they had concerns or were unable to consider the
minimum range of five years’ confinement and then individually questioned
several veniremembers regarding whether they had a problem deciding
punishment. During this questioning, veniremember 22 did not indicate that he
12
was unable to consider the full range of punishment. Appellant complains of the
following exchange when the trial court asked, “Anybody else?”
[Veniremember 22]: Yeah, I have a little bit of a problem with the
range, you know, 5 years versus such a variety there. It seems like,
yeah, if it goes that way, it’s hard to be, and I think something this
serious where someone dies, you know, the light end of the 5 years.
[Court]: Well, I guess my question is, could you imagine a situation
in your mind? I mean, and I only guess you certainly don’t have to
say what it is—it wouldn’t be appropriate for me to ask you— but
could you think of a situation where in a felony murder case you
would be able to consider the lower end of the range? And I know it’s
not easy, because these are not things you think about on a daily basis.
I gave you the example of some teenagers that set a fire, not intended.
This is the type of murder that there’s no intent that the person gets
killed, not like a regular murder case. And so the question is—
. . . . [discussion at the bench not relevant to this appellate issue]
Can you—I guess what I’m asking you, can you keep an open mind as
to the full range of punishment until you’ve heard the facts both at the
guilt/innocence phase of the trial and the punishment phase and then
decide what the appropriate punishment would be or have you already
excluded the minimum range of punishment?
[Veniremember 22]: It’s hard to think someone’s life is worth just a
few years, what can lead on to afterwards that gets reduced in the
system to a little bit. It’s kind of hard to think a life is worth just a
few years.
[Court]: Fair enough.
Appellant did not assert any objection or challenge for cause based on this
exchange, and the trial court continued questioning other potential jurors.
The prosecutor posed questions regarding range of punishment, referring to
punishment as a “toolbox” of possible punishment ranges or “tools” that the
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veniremembers could use in deliberations to determine an appropriate punishment
based on the evidence. The prosecutor asked the venire whether they could take all
of the “tools” to deliberations to find an appropriate punishment. When the
prosecutor questioned veniremember 22 about keeping an open mind and assessing
the minimum range of five years when the facts are appropriate, appellant
approached the bench and objected to additional questioning for rehabilitative
purposes. The trial court stated, “Okay. Some of the jurors were at least
ambiguous in their response, so I will let her question them; however, one of the
jurors in response to your questions indicated they can’t consider the full range.”
After a brief conversation about veniremember 21, who the parties agreed to
excuse, appellant asserted an objection to several veniremembers including
veniremember 22, claiming that they had expressed an inability to consider the low
end of the punishment range. The trial court ruled that the prosecutor could ask
slightly different questions than the ones it had previously posed. The prosecutor
resumed her questioning of veniremember 22 in the following exchange:
[Prosecutor 1]: Okay, Juror No. 22, I believe we left off with you. So
now that I have kind of given you some other examples, can you wait
to listen to the facts and then consider 5 years if it’s appropriate and
consider life if it’s appropriate?
....
[Veniremember 22]: I say that when you give other examples, it has
something, you have the tools, but I still think life is worth—it would
be difficult to go on the low end.
[Prosecutor 1]: And you may in your mind think that there’s not that
many situations where 5 is appropriate, and that’s okay. But if you
heard those facts come forward and you felt like it was appropriate,
would you follow your feelings and give 5 years if you felt like that
was appropriate?
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[Veniremember 22]: I could consider it, yes.
Appellant asserted no objections or challenges at this point.
Appellant’s trial counsel asked the venirepanel if they were unable to
consider the low end of the punishment range if a child complainant were a
younger child; the State’s objection to the question was sustained. The record
shows that several veniremembers, including veniremember 22, raised their hands
in response to an unclear query from trial counsel regarding a child under the age
of 15.1 Trial counsel posed no other questions regarding punishment range and
asserted no objections or challenges to veniremember 22.
Outside of the jury’s presence, the trial court removed veniremembers based
upon the parties’ agreement; neither party raised an objection to veniremember 22.
The trial court then instructed the parties to make their strikes. After both sides
had exercised their peremptory challenges, the jury was seated, but not yet sworn.
Veniremember 22 was not seated on the jury, but veniremember number 43 was.
At this time, the following discussion occurred at the bench:
[Appellant’s counsel]: As for the record, Your Honor, based on
previous discussions, again I would restate my position that my
challenge for cause on No. 22, because he had previously stated a bias
that we discussed earlier, since I now had to exercise a peremptory
challenge on him.
1
The record is unclear what question was posed to the venire. After the trial court
sustained the State’s commitment objection to trial counsel’s question whether the panel
members could consider the low end of the punishment range based on the age of a younger
child, appellant’s trial counsel stated, “Okay. Let me move on. Oh, let me do this. I’ve got a
number—again, let’s just go down the row. First row, if you would raise your hand, starting
with Mr. Allen there. I know you raised your hand. Just hold your hand up again. And I’ll tell
you what, there’s so many of you, let me just go down and you give me your juror number.”
Several veniremembers stated their numbers. In response to a veniremember’s question whether
counsel’s question applied to all children, counsel stated that “a child by law is under the age of
15.” Other veniremembers, including number 22, stated their numbers.
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[Court]: What challenge for cause was it? I don’t recall there being a
challenge for cause not being granted.
[Prosecutor 2]: There was a punishment issue and she rehabilitated
him.
[Prosecutor 1]: You didn’t bring it up in the challenges.
[Appellant’s counsel]: I already made my point at the time. My
position is, he already demonstrated that bias and therefore there is no
rehabilitation.
[Court]: Okay. I understand.
[Appellant’s counsel]: And that’s the one that was denied, and that’s
what I’m talking about.
[Court]: Okay. So go ahead for the record.
[Appellant’s counsel]: And so because of that, I was—I didn’t have a
strike to strike No. 43, who would be unacceptable under other
circumstances, so I would request an additional peremptory challenge.
[Court]: Refresh my memory. This was a juror that initially indicated
they could not consider the full range and then ended up vacillating
and saying they could.
[Appellant’s counsel]: Yes.
[Court]: Okay. Your request for an additional strike is denied.
Later during the trial, veniremember 43, who was identified by trial counsel
as unacceptable, was excused for a scheduling conflict; appellant agreed to excuse
veniremember 43. Veniremember 43 did not participate in deliberations and was
replaced with the alternate juror.
Appellant asserts that he preserved error on his challenge for cause. To
preserve error regarding a trial court’s allegedly erroneous denial of a challenge for
cause, the record must show that: (1) appellant asserted a clear and specific
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challenge for cause, which was denied; (2) he used a peremptory strike on the
complained of veniremember; (3) he used all of his peremptory strikes; (4) his
request for additional peremptory strikes was denied; and (5) a juror appellant
identified as objectionable sat on the jury.” See Davis v. State, 329 S.W.3d 798,
807 (Tex. Crim. App. 2010). On this record, we conclude appellant failed to
preserve error.
The record shows that appellant failed to assert a clear and specific
challenge for cause. Although he objected to further questioning of veniremember
22, and the trial court overruled that objection, appellant did not assert any
objection to veniremember 22 when both parties identified veniremembers that
were challengeable for cause. It was only after both parties had asserted
peremptory challenges and after the jury had been seated that appellant claimed to
have been denied a challenge for cause. Appellant has failed to preserve error. See
Escamilla v. State, 143 S.W.3d 814, 821 (Tex. Crim. App. 2004) (holding
defendant who did not raise challenge for cause when asked by court, but later
requested an additional peremptory challenge to strike an “unacceptable” juror
who allegedly could not consider mitigation evidence, did not preserve error); see
also Gardner v. State, 306 S.W.3d 274, 297–98 (Tex. Crim. App. 2009)
(concluding that defendant failed to preserve error on denial of challenge for cause
when he focused on asking additional questions that would have supported a
challenge for cause rather than asserting an actual challenge for cause and
receiving a denial).
Even if appellant had preserved his challenge for cause, he has not shown
any error requiring reversal. A trial court’s ruling on a challenge for cause may be
reversed only for a clear abuse of discretion. See Gardner, 306 S.W.3d at 296.
When a veniremember’s answers are ambiguous, vacillating, unclear, or
17
contradictory, as veniremember 22’s were, we give deference to the trial court’s
decision. See id. In addition, the record shows that veniremember 43, who
appellant claimed was objectionable, was released from jury service and replaced
by an alternate juror before the jury began deliberations. When an otherwise
objectionable juror is seated on the jury but does not participate in jury
deliberations, a defendant has not been harmed. See Cooks v. State, 844 S.W.2d
697, 722 (Tex. Crim. App. 1992). Likewise, appellant has not suffered harm
because the jury convicted appellant of a lesser-included offense with a different
punishment range. Cf. King v. State, 953 S.W.2d 266, 268 (Tex. Crim. App. 1997)
(holding any error in denial of challenge for cause based on veniremember’s stated
inability to consider the full range of punishment on lesser-included offense was
harmless when jury convicted defendant of greater offense and never considered
punishment on lesser-included offense). We overrule appellant’s first issue.
CONCLUSION
Having overruled appellant’s two issues, we affirm the judgment.
/s/ J. Brett Busby
Justice
Panel consists of Justices Christopher, Jamison, and Busby.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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