Opinion issued October 20, 1016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-16-00058-CR
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MICHAEL SINGLETON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Case No. 1446669
MEMORANDUM OPINION
After the jury found Michael Singleton guilty of failure to register as a sex
offender, the trial court sentenced Singleton to 40 years’ imprisonment in the
Texas Department of Criminal Justice Institutional Division. Singleton raises as
his sole point of error the trial court’s failure to grant his motion to dismiss the jury
panel. We affirm.
BACKGROUND
In October 2014, Singleton was indicted for failure to register as a sex
offender. During voir dire, Singleton’s counsel asked, “How many of you here
believe that Mr. Singleton has been previously convicted of a sexual assault crime
which requires registration?” In response, jury panel member 29 raised his hand
and explained that he based his belief on Singleton’s indictment. Singleton’s
counsel repeated his question and received affirmative responses from jury panel
members 1, 2, 3, 4, 6, 7, 8, 9, 11, 12, 13, 14, 15, and 29. At that point, the trial
court interrupted and explained:
Each and every single one of us, including this man right here,
is presumed to be innocent unless the government presents evidence
to convince beyond a reasonable doubt that he is indeed guilty. That
includes presenting evidence that he is the person that has been
convicted of that offense . . . It’s their job to do it . . . . But until they
present it, how do you know?
Singleton’s counsel then asked the jurors if they had changed their answers in light
of the trial court’s instructions, and jury panel members 1, 2, 3, 4, 5, 6, 7, 8, 10, 11,
12, 13, 14, and 15 replied that they had changed their minds. Jury panel member 9
remained convinced that Singleton had committed an offense for which
registration is required based on the indictment.
Singleton’s counsel then moved to strike the panel, contending that the
entire panel was improperly “tainted” because at first many of the jurors believed
that Singleton had committed an offense requiring registration prior to the
introduction of evidence. Singleton’s counsel renewed his objection before and
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after the jury strikes were made by the court. The trial court struck for cause jury
panel members 1, 2, 6, 8, 9, 10, 14, 15, 17, and 29. During all three objections,
Singleton’s counsel never requested additional peremptory challenges and never
identified an objectionable juror who sat on the panel because Singleton had used
all his peremptory challenges.
DISCUSSION
I. Standard of Review and Applicable Law
A prospective juror is subject to challenge for bias under the Code of
Criminal Procedure, but that challenge may be waived. See TEX. CODE CRIM.
PROC. ANN. art. 35.16 §§ 9, 11 (West 2005). Further, while the United States and
Texas Constitutions provide a constitutional right to an impartial jury, that right
may also be waived. See State v. Morales, 253 S.W.3d 686, 697 (Tex. Crim. App.
2008) (holding that the Sixth Amendment right to an impartial jury may be
waived); Jones v. State, 982 S.W.2d 386, 391 (Tex. Crim. App. 1998) (holding that
the Texas constitutional right to an impartial jury affords no greater protection than
that provided by the Sixth Amendment). To preserve an objection to the denial of
a challenge for cause, counsel must (1) exercise a peremptory challenge on the
objectionable panel member, (2) exhaust all peremptory challenges, (3) request,
and be denied, additional peremptory challenges, and (4) identify another
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objectionable juror who sat on the case because counsel used all his peremptory
challenges. Johnson v. State, 43 S.W.3d. 1, 5–6 (Tex. Crim. App. 2001).
We review a trial court’s decision to deny a challenge for cause by looking
at the entire record to determine whether sufficient evidence supports the ruling.
Davis v. State, 329 S.W.3d. 798, 807 (Tex. Crim. App. 2010) (citing Feldman v.
State, 71 S.W.3d. 738, 744 (Tex. Crim. App. 2002)). “The test is whether a bias or
prejudice would substantially impair the panel member’s ability to carry out the
juror’s oath and judicial instructions in accordance with the law.” Id. (citing
Gardner v. State, 306 S.W.3d. 274, 295 (Tex. Crim. App. 2009)). In applying this
test, we must afford considerable deference to the trial court’s ruling because the
trial judge is in the best position to evaluate a panel member’s demeanor and
responses. Id. A trial court’s ruling on a challenge for cause may be reversed only
for a clear abuse of discretion. Id. (citing Gardner, 306 S.W.3d. at 296). “When a
panel member’s answers are vacillating, unclear, or contradictory, we accord
particular deference to the trial court’s decision.” Id. (citing Gardner, 306
S.W.3d. at 296).
Before a panel member can be excused for cause, the court must explain the
law and must ask the panel members whether they can follow that law irrespective
of their personal views. Id. The burden of establishing that a challenge is proper
rests with its proponent. Id; Castillo v. State, 913 S.W.2d. 529, 534 (Tex. Crim.
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App. 1995) (citing Hernandez v. State, 757 S.W.2d. 744, 753 (Tex. Crim. App.
1988)). That burden is not met until the proponent shows that the panel member
understood the law and could not overcome his prejudice well enough to follow the
law. Davis, 329 S.W.3d. at 807.
II. Analysis
Singleton argues on appeal that the trial court erred in overruling his
objection to strike the entire panel for bias, and that the error violated his federal
and Texas constitutional right to an impartial jury, as well as his statutory right to
strike biased panel members for cause. See TEX. CONST. art. 1 § 10; U.S. CONST.
amend.VI; TEX. CODE CRIM. PROC. ANN. art. 35.16 § 9. Singleton’s right to an
impartial jury is subject to waiver. See TEX. CODE CRIM. PROC. ANN. art. 35.16 §§
9, 11; Morales, 253 S.W.3d at 697; Jones, 982 S.W.2d at 391. To preserve error,
Singleton needed to identify an objectionable panel member who was seated and
request additional peremptory strikes to remove the juror. See Johnson, 43
S.W.3d. at 4–5. In this case, counsel did neither. Accordingly, we hold that
Singleton has waived any error.
Even had Singleton identified an objectionable juror, he failed to satisfy his
burden to show bias because he did not demonstrate that any of the selected jurors
could not overcome their prejudice well enough to follow the law. See Castillo,
913 S.W.2d. at 534; Davis, 329 S.W.3d. at 807. Although jury panel members 5,
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7, and 11 gave vacillating responses to Singleton’s question regarding whether
they believed Singleton had been convicted of an offense that required registration,
we accord particular deference to the trial court’s decision. See Davis, 329
S.W.3d. at 807. We hold that the trial court did not abuse its discretion in
overruling Singleton’s objections to the jury panel.
CONCLUSION
We affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Justices Bland, Massengale, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
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