ACCEPTED
06-14-00241-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
3/11/2015 9:22:32 AM
DEBBIE AUTREY
CLERK
No. 06-14-0241-CR
FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
IN THE SIXTH COURT OF APPEALS 3/11/2015 9:22:32 AM
DEBBIE AUTREY
at TEXARKANA Clerk
________________________________________________
KELLEY WAYNE LAMON,
Appellant
vs.
STATE OF TEXAS,
Appellee
________________________________________________
Appeal from the District Court of Red River County, Texas
102nd Judicial District
________________________________________________
APPELLANT’S BRIEF
_________________________________________________
Troy Hornsby
Miller, James, Miller & Hornsby, L.L.P.
1725 Galleria Oaks Drive
Texarkana, Texas 75503
troy.hornsby@gmail.com
903.794.2711, f. 903.792.1276
Attorney for Appellant
Kelley Wayne Lamon
Oral Argument Requested
IDENTITY OF PARTIES AND COUNSEL
Pursuant to Texas Rule of Appellate Procedure 38.1(a), the following is a
complete list of all parties to the trial court’s judgment and the names and
addresses of all trial and appellate counsel:
Appellant Appellant’s appellate counsel
Kelley Wayne Lamon Troy Hornsby
Miller, James, Miller, & Hornsby, LLP
1725 Galleria Oaks Drive
Texarkana, Texas 75503
Appellant’s trial counsel
Dave Turner, Jr.
1116 Lamar Avenue
Paris, Texas 75460-4682
Appellee Appellee's appellate/trial counsel
State of Texas Val Varley
Red River County District Attorney
400 N. Walnut Street
Clarksville, Texas 75426
2
TABLE OF CONTENTS
Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Statement of Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Sole Issue: Did a juror's issue regarding men attacking women
make him mentally impaired to the level that it
hindered his ability to perform his duties as a
juror?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Preservation of Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Law and Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Harmful Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
3
INDEX OF AUTHORITIES
CASES: PAGE
Aldrick v. State,
104 S.W.3d 890 (Tex. Crim. App. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . 12
Brooks v. State,
990 S.W.2d 278 (Tex. Crim. App. 1999),
cert. denied, 528 U.S. 956, 120 S.Ct. 384, 145 L.Ed.2d 300 (1999) . . 13,14
Brumit v. State,
206 S.W.3d 639 (Tex. Crim. App. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . 12
Carrillo v. State,
597 S.W.2d 769 (Tex. Crim. App. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . 16
Ex Parte Hernandez,
906 S.W.931 (Tex. Crim. App. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Garcia v. State,
149 S.W.3d 135 (Tex. Crim. App. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . 12
Johnson v. State,
967 S.W.2d 410 (Tex. Crim. App. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . 17
Johnson v. State,
43 S.W.3d 1 (Tex. Crim. App. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
King v. State,
953 S.W.2d 266 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . . . . . . . . . . . 16
Landrum v. State,
788 S.W.2d 577 (Tex. Crim. App. 1990) . . . . . . . . . . . . . . . . . . . . . . 15-16
Marin v. State,
851 S.W.2d 275 (Tex. Crim. App. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . 12
Mendez v. State,
138 S.W.3d 334 (Tex. Crim. App. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . 11
Mosley v. State,
983 S.W.2d 249 (Tex. Crim. App. 1998) (op. on reh'g),
cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999) . . . 11
4
Ramsey v. Dunlop,
146 Tex. 196, 205 S.W.2d 979 (1947) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Ransom v. State,
920 S.W.2d 288 (Tex. Crim. App. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . 17
Rodriguez v. State,
71 S.W.3d 800 (Tex. App.—Texarkana 2002, no pet.) . . . . . . . . . . . . . 12
Routier v. State,
112 S.W.3d 554 (Tex. Crim. App. 2003),
cert. denied, 541 U.S. 1040, 124 S.Ct. 2157, 158 L.Ed.2d 728 (2004) . . . 12
Rushing v. State,
50 S.W.3d 715 (Tex. App.—Waco 2001),
aff'd, 85 S.W.3d 283 (Tex. Crim. App. 2002) . . . . . . . . . . . . . . . . . . . . . 13
Schutz v. State,
63 S.W.3d 442 (Tex. Crim. App. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Sneed v. State,
209 S.W.3d 782 (Tex. App.)Texarkana 2006, pet. ref’d) . . . . . . . . . . . 16
STATUTES/RULES:
Tex. Code Crim. Proc. Ann. art. 35.16 (West 2006) . . . . . . . . . . . . . . . . . 13,14
Tex. Code Crim. Proc. Ann. art. 36.29 (West 2006) . . . . . . . . . . . . . . . . . 14,15
Tex. R. App. P. 33.1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Tex. R. App. P. 44.2(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5
STATEMENT OF THE CASE
Nature of case: This is an appeal from a conviction for assault (of a public
servant), pursuant to Texas Penal Code section 22.01.
(C.R. vol. 1 pg. 85).
Judge/Court: Judge Bobby Lockhart sitting in the 102nd District Court of
Red River County, Texas. (C.R. vol. 1 pg. 85).
Pleas: Kelley Wayne Lamon (Smith) entered a plea of “not
guilty” to the allegation against him. (C.R. vol. 1 pg.
85)(R.R. Vol. 6 pg. 24).
Trial disposition: The case was tried to a jury which found Lamon guilty of
assault (of a public servant) and recommended a sentence
of 12 years (C.R. vol. 1 pg. 71) which was imposed by the
trial court. (C.R. vol. 1 pg. 85)
6
ISSUE PRESENTED
Sole Issue: Did a juror's issue regarding men attacking women make
him mentally impaired to the level that it hindered his
ability to perform his duties as a juror?
7
STATEMENT OF ORAL ARGUMENT
Oral argument might assist the trial court in considering whether the
trial court correctly excused the sitting jury by discussing the factual basis
for the trial court’s decision.
8
STATEMENT OF FACTS
The State alleges that Keith Wayne Lamon (Lamon) and four other
jail inmates in the Red River County Jail planned an escape attempt. They
approached the communications area where Phyllis Owens, a correctional
officer was working as a dispatcher. (R.R. Vol. 6 pg. 28-39). Lamon put
Phyllis Owens in a choke hold and she lost consciousness. (R.R. Vol. 6 pg.
28-39). However, Phyllis Owens was assisted by several jail trustees. (R.R.
Vol. 6 pg. 28-39).
Lamon contends that he had no intention to escape (R.R. Vol. 6 pg.
111) because he was going to be bonded out of custody shortly. (R.R. Vol. 6
pg. 85,95). Further, Phyllis Owens was attacked by another jail inmate and
Lamon attempted to assist Phyllis Owens. (R.R. Vol. 6 pg. 26, 62,101).
9
SUMMARY OF THE ARGUMENT
Sole Issue: Did a juror's issue regarding men attacking women make
him mentally impaired to the level that it hindered his
ability to perform his duties as a juror?
After the jury was seated, the trial court sua sponte excused a juror
because the juror stated he had an issue with men attacking a woman. This
ground is sufficient during voir dire. However, this was an insufficient
basis to excuse the juror during the trial because the juror's bias did not rise
to the level of mental impairment.
10
ARGUMENT
Sole Issue: Did a juror’s issue regarding men attacking women make him
mentally impaired to the level that it hindered his ability to
perform his duties as a juror?
After the jury was seated, the trial court sua sponte excused a juror
because the juror stated he had an issue with men attacking a woman. This
ground is sufficient during voir dire. However, this was an insufficient
basis to excuse the juror during the trial because the juror’s bias did not
rise to the level of mental impairment.
Preservation of Error
To preserve a complaint for appellate review, a party must generally
have presented to the trial court a timely request, objection, or motion
stating the specific grounds for the desired ruling, if they are not apparent
from the context of the request, objection, or motion. See Tex. R. App. P.
33.1(a); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on
reh'g), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999).
Further, the trial court must have ruled on the request, objection, or
motion, either expressly or implicitly, or the complaining party must have
objected to the trial court's refusal to rule. Tex. R. App. P. 33.1(a)(2); Mendez
v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004).
Here, immediately after the trial court stated it would remove the
seated juror, Lamon’s attorney, the Judge and the State’s attorney
11
discussed removing the juror and proceeding to trial with only eleven
jurors at some length. (R.R. Vol. VI pg. 13-19). Lamon’s attorney
specifically stated the following:
MR. TURNER: I have discussed the matter with my client, Your
Honor. He does not want to proceed with 11 jurors. If this
gentleman had raised this issue yesterday, then we wouldn't
have had enough jurors to go forward, perhaps.
(R.R. Vol. 6 pg. 13). Lamon’s attorney later requested a mistrial on the
same basis, which was denied by the court. (R.R. Vol. 6 pg. 16,18).
Thus, this issue was preserved for appellate review. However, if the Court
concludes the objection was not specific enough to the specific issue of the
Court’s removal of the juror, the issue is nonetheless fundamental error.
Error which is based upon an absolute right or prohibition need not
be preserved. Marin v. State, 851 S.W.2d 275 (Tex. Crim. App.1993)
(discussing three types of rights); see also Garcia v. State, 149 S.W.3d 135, 144
(Tex. Crim. App. 2004). Such error is often called fundamental error. See
e.g. Brumit v. State, 206 S.W.3d 639 (Tex. Crim. App. 2006). An error is
considered fundamental when it "directly and adversely affects the interest
of the public generally, as that interest is declared in the statutes or
Constitution of this state." Ramsey v. Dunlop, 146 Tex. 196, 202, 205 S.W.2d
979, 983 (1947). A denial of absolute systemic requirements does not
require a timely and specific objection to raise for the first time on appeal.
See Aldrick v. State, 104 S.W.3d 890, 895 (Tex. Crim. App. 2003); Rodriguez v.
State, 71 S.W.3d 800, 802 (Tex. App.—Texarkana 2002, no pet.); Rushing v.
12
State, 50 S.W.3d 715, 723 (Tex. App.—Waco 2001), aff'd, 85 S.W.3d 283 (Tex.
Crim. App. 2002).
Here, the erroneous disqualification of the juror did not result in the
seating of an alternate juror. Rather, the error resulted in Lamon being
tried by an eleven person jury rather than a twelve person jury.
Accordingly, the error was fundamental.
Standard of Review
The decision to excuse a juror, once the jury has been impaneled and
sworn, is reviewed under an abuse-of-discretion standard. Routier v. State,
112 S.W.3d 554, 588 (Tex. Crim. App. 2003), cert. denied, 541 U.S. 1040, 124
S.Ct. 2157, 158 L.Ed.2d 728 (2004); Brooks v. State, 990 S.W.2d 278, 286 (Tex.
Crim. App. 1999), cert. denied, 528 U.S. 956, 120 S.Ct. 384, 145 L.Ed.2d 300
(1999).
Law and Application
After the jury was seated, the trial court sua sponte excused a juror
because the juror stated he had an issue with men attacking a woman. This
ground is sufficient during voir dire. However, this was an insufficient
basis to excuse the juror during the trial because the juror’s bias did not
rise to the level of mental impairment.
Texas Code of Criminal Procedure article 35.16 provides a trial court
13
broad discretion to excuse jury panel members for numerous reasons. See
Tex. Code Crim. Proc. Ann. art. 35.16 (West 2006). However, such
challenges must be exercised during voir dire. This provision is contained
within chapter 35 of the Code of Criminal Procedure titled "Formation of
the Jury." See Tex. Code Crim. Proc. Ann. Chapter 35 (West 2006). The
provisions of that chapter address calling a panel, questioning the panel,
making challenges for cause, making peremptory challenges and seating
the jury. Id. Additionally, a trial court may excuse a juror from further
service if the juror becomes disabled during trial. See Tex. Code Crim. Proc.
Ann. art. 36.29 (West 2006). A juror is disabled within the meaning of the
statute if the juror is physically or mentally impaired in some way which
hinders his or her ability to perform the duty of a juror. See Brooks v. State,
990 S.W.2d 278, 286 (Tex. Crim. App. 1999), cert. denied, 528 U.S. 956, 120
S.Ct. 384, 145 L.Ed.2d 300 (1999) .
In this case, the trial court excused the juror because the juror stated
he had an issue with a man who attacks a woman as follows:
THE COURT: Okay. If you would, at this time, sir, tell me why
you think you can't serve on this jury.
JUROR YAROSS: I have a bad problem with any man attacking
a woman for any reason, and I don't know if I could be a fair
judge of that. I've had -- that's been in my family before, and
I'm probably not the one to judge him.
...
MR. VARLEY: Now, based on that, do you think that you'd be
able to put aside anything in your past -- or I don't know what
you're --
14
JUROR YAROSS: That's what I can't tell you. I don't know until
I'm in this situation.
...
JUROR YAROSS: What I'm concerned about is if we do find
that the evidence is against him, what will I feel then.
MR. VARLEY: You're worried about the punishment phase?
JUROR YAROSS: Exactly.
...
MR. VARLEY: I understand that, but could you imagine any
certain situation in which an assault on a public servant in
which you could consider the minimum range of punishment,
the two years.
JUROR YAROSS: I don't know, really, especially her being a
woman, especially what's going on with public servants these
days. And it just -- I've got friends who are in law enforcement,
too.
(R.R. Vol. 7 pgs. 5-7).
Thus, the issue presented is whether the trial court abused its
discretion by concluding that the juror’s issue with a man attacking a
woman made him mentally impaired to the level that it hinders his ability
to perform his duties as a juror.
In Ex Parte Hernandez the Texas Court of Criminal Appeals concluded
that bias or prejudice with regard to a Defendant did not qualify as a
disability under this statute. 906 S.W.931 (Tex. Crim. App. 1995). More
specifically, bias for or against any of the law applicable to the case, while
an appropriate basis on which to challenge a member of the venire for
cause, does not render a member of the sworn jury panel mentally
impaired such that he is disabled as envisioned by article 36.29(a). Landrum
15
v. State, 788 S.W.2d 577, 579 (Tex. Crim. App. 1990)(citing Carrillo v. State,
597 S.W.2d 769 (Tex. Crim. App. 1980)).
Here, the juror simply stated a bias against a man who is involved in
an altercation with a woman. However, the juror never provided a basis to
conclude that the juror’s bias rose to the level of a mental impairment. In
fact the only basis for such a conclusion was the juror’s statement that he
didn’t know if he could consider the minimum range of punishment for the
offense. (R.R. Vol. 7 pgs. 5-7). This situation appears similar to that in
Sneed v. State where this Court concluded that the bias expressed by the
juror alone was insufficient to establish leqal disqualification. Sneed v.
State, 209 S.W.3d 782 (Tex. App.)Texarkana 2006, pet. ref’d).
For this reason, the juror’s issue of a man attacking a woman does
not raise to the specific and identifiable fear present in Reyes. Accordingly,
the juror's fear of retaliation did not mentally impair him to the level that it
hinders his ability to perform his duties as a juror.
Harmful Error
An error must affect the substantial rights of the accused to be
harmful. See Tex. R. App. P. 44.2(b). A "substantial right" is affected when
the error had a substantial and injurious effect or influence in determining
the jury's verdict. King v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997)
(citing Tex. R. App. P. 44.2(b)). Alternatively, error is harmless if the error
16
"did not influence the jury, or had but a slight effect." Johnson v. State, 967
S.W.2d 410, 417 (Tex. Crim. App. 1998). The Appellant does not bear the
burden to establish such harmful error. Schutz v. State, 63 S.W.3d 442, 444
(Tex. Crim. App. 2001); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App.
2001). Rather, it is the responsibility of the appellate court to assess harm
after reviewing the record. Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim.
App. 2001); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001).
In a criminal setting, an erroneous grant of a challenge for cause is
generally harmful error. See e.g. Ransom v. State, 920 S.W.2d 288 (Tex. Crim.
App. 1994). Accordingly, Lamon likewise contends that the erroneous
removal of a juror is also harmful error.
17
PRAYER
WHEREFORE, premises considered, Kelley Wayne Lamon
respectfully requests that this conviction be reversed and judgment
rendered in his favor, that the conviction be reversed and a new trial
granted, or for such other and further relief to which Appellant may be
entitled.
Respectfully Submitted,
Miller, James, Miller & Hornsby, L.L.P.
By:______________________________
Troy Hornsby
Texas Bar Number 00790919
1725 Galleria Oaks Drive
Texarkana, Texas 75503
troy.hornsby@gmail.com
903.794.2711, f. 903.792.1276
Attorney for Appellant Kelley Wayne
Lamon
18
CERTIFICATE OF SERVICE
This is to certify that on March 11, 2015, a true and correct copy of the
above and foregoing Appellant’s Brief has been forwarded by U.S. mail on
all counsel of record and interested party listed below:
Appellant State's Attorney
Kelly Wayne Lamon Val Varley
TDC #01972384 Red River County District
McConnell Unit Attorney
3001 S. Emily Drive 400 N. Walnut Street
Beeville, Texas 78102 Clarksville, Texas 75426
Trial Court Judge Defendant's Trial Attorney
Hon. Bobby Lockhart Dave Turner, Jr.
102nd District Judge 1116 Lamar Avenue
Bi-State Justice Building Paris, Texas 75460-4682
100 N. Stateline Avenue
Texarkana, Texas 75501
___________________________________
Troy Hornsby
19
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4, the undersigned
counsel certifies that, exclusive of the exempted portions in Texas Rule of
Appellate Procedure 9.4(i)(1), this brief contains 1,914 words (less than
15,000), based upon the word count of the WordPerfect program used to
prepare the document.
_______________________________
Troy Hornsby
20