Blanchard v. State, No. 14-04-00482-CR (TX 11/23/2005)
| Decision Date | 23 November 2005 |
| Docket Number | No. 14-04-00482-CR.,14-04-00482-CR. |
| Parties | BRANT RAY BLANCHARD, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Supreme Court |
On Appeal from the 185th District Court, Harris County, Texas, Trial Court Cause No. 955,512.
Affirmed.
Panel consists of Justices HUDSON, EDELMAN, and SEYMORE. (SEYMORE, J., concurring).
J. HARVEY HUDSON, Justice.
Appellant, Brant Ray Blanchard, was convicted following a jury trial of aggravated sexual assault of a child; he was sentenced to twenty years' confinement and assessed a $10,000 fine. See TEX. PEN. CODE ANN. § 22.021 (Vernon 2003). In two related points of error, appellant argues (1) he was denied the right to a fair trial when a juror withheld information about a family member's conviction for indecency with a child, and (2) the trial court abused its discretion in denying his request for a new trial. We affirm.
Prior to trial, the judge began voir dire by asking the venire about the burden of proof and whether they could presume appellant's innocence knowing he faced charges of aggravated sexual assault of a child and indecency with a child. Several members of the panel expressed concern that personal experience might preclude them from being impartial. The court briefly questioned these individuals and then relinquished questioning to the parties.
The State then proceeded with the following colloquy:
Like I said, these are tough cases and I know some of you all raised your hand when the judge was talking to you about proof beyond a reasonable doubt and mentioned your lives had been touched in one way or another by sexual assault or some type of sexual-related offense with children.
If I could, I would like to go row by row again with who that was again. Basically what I'm looking for is either you, close friend or family member who was either a victim of sexual assault or indecency by contact to the point where you don't think you could be fair to the [appellant] or it would in some way inhibit your judgment, ability to sit in judgment of this trial or on the other side of this case, perhaps you have someone you know that is close to you who has been falsely accused of it. You may believe that.
Obviously these types of cases are very personal and sometimes if we have a relative charged with something like that, we don't like to admit it to ourselves. And we, henceforth, think that they've been charged wrongly. But if you had one of those two type situations happen to you, I'd like to know about it.
(emphasis added). Several jury panelists responded and were asked relevant follow-up questions. The panel member who was later seated as juror eleven did not respond.
After the State concluded, defense counsel questioned the panel about the presumption of innocence and then began asking specific questions of individual venire members:
[To one panelist] . . . [D]o you have any experiences in your own life that you feel would make you less than an unbiased juror in a case like this?
. . . .
You remember when [the prosecutor] . . . was talking about people being accused or you might have family members that are accused and I think the words he used were something to the effect of because they're a family member, we don't want to accept they're accused; so, we might always deny it, leaving me to believe he was referring to a situation where your family member is accused, but they're guilty, but you won't accept that. Can you accept the proposition that people can be falsely accused of sexual assault of a child?
. . . .
Anybody on the first row that would feel that because of the nature of the type of offense that they would think it's just — it's not a type of offense where somebody can be falsely accused? Anybody on the first row?
The record does not indicate which, if any, panel members responded. Regardless, counsel immediately returned to questioning individual jurors about punishment and other related topics. At the close of voir dire, both sides exercised their challenges for cause and peremptory strikes. Neither side challenged juror eleven.
After the trial concluded, juror eleven indicated to the judge and attorneys that a family member had been convicted of indecency with a child, and that he believed it was important to convict people in these types of cases. Based on this disclosure, appellant timely filed a motion for new trial on June 14, 20041. Three days later, appellant filed a "corrected" motion for new trial2. At the July 15, 2004 hearing on the motion for new trial, counsel for the State and appellant agreed that the hearing would proceed on the corrected—not the original—motion. At the close of the hearing, the judge orally denied appellant's corrected motion for new trial. No written order was ever entered on the original or corrected motions.
Appellant complains of juror eleven's failure during voir dire to disclose his wife's uncle's conviction of indecency with a child. Appellant claims he was harmed because he was denied the opportunity to challenge this juror for cause or to use a peremptory strike to remove him from the venire. He argues this juror's silence vitiated his right to a fair trial. Accordingly, appellant concludes he was entitled to a new trial and claims the trial court abused its discretion in denying his request for a new trial.
A trial court's decision to deny a motion for new trial is reviewed for an abuse of discretion. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004); Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995); Brasher v. State, 139 S.W.3d 369, 373 (Tex. App.-San Antonio 2004, pet. ref'd). With respect to oral questions asked during voir dire, error occurs when a prejudiced or biased juror is selected through no fault of or lack of diligence on the part of defense counsel. Gonzales v. State, 3 S.W.3d 915, 916 (Tex. Crim. App. 1999); Brasher, 139 S.W.3d at 373. A new trial is not warranted if the error did not result in harm. Gonzales, 3 S.W.3d at 917 n.2. It is not the mere failure to disclose information that warrants a new trial; rather, it is the chance that a biased individual came to serve through silence or deception that the law seeks to ameliorate. Ford v. State, 129 S.W.3d 541, 547 (Tex. App.-Dallas 2003, pet. ref'd); Santacruz v. State, 963 S.W.2d 194, 197 (Tex. App.-Amarillo 1998, pet. ref'd).
The voir dire process is designed to ensure that an intelligent, alert, disinterested, impartial, and truthful jury will perform the duties it is assigned. Armstrong v. State, 897 S.W.2d 361, 363 (Tex. Crim. App. 1995); Ford, 129 S.W.3d at 547. A juror who withholds material information during voir dire denies counsel the opportunity to exercise their challenges, thus hampering the selection of a disinterested and impartial jury. Franklin v. State, 12 S.W.3d 473, 477-78 (Tex. Crim. App. 2000); Salazar v. State, 562 S.W.2d 480, 482 (Tex. Crim. App. [Panel Op.] 1978). However, defense counsel must diligently ask questions calculated to bring out information revealing a juror's inability to be impartial. Armstrong, 897 S.W.2d at 363-64. These questions must be specific—counsel cannot rely on broad questions to satisfy this obligation. Gonzales, 3 S.W.3d at 917; Brasher, 139 S.W.3d at 374. Unless the attorney poses specific questions to the venire, any material information a juror fails to disclose is not "withheld," and does not constitute misconduct. Jones v. State, 596 S.W.2d 134, 137 (Tex. Crim. App. 1980), overruled on other grounds, Sneed v. State, 670 S.W.2d 262, 266 (Tex. Crim. App. 1984);Armstrong, 897 S.W.2d at 364; Cuellar v. State, 943 S.W.2d 487, 491 (Tex. App.-Corpus Christi 1996, pet. ref'd).
After reviewing the record, we find defense counsel did not ask the questions needed to elicit the conviction of juror eleven's family member. On voir dire, defense counsel asked a broad question to a particular jury panel member: "Can you accept the proposition that people can be falsely accused of sexual assault of a child?" Counsel then questioned whether any potential jurors "would feel that because of the nature of the type of offense that they would think it's just — it's not a type of offense where somebody can be falsely accused?" Neither of these questions asked jurors to disclose whether family members had convictions for sexual assault of a child or similar crimes. Thus, no information was withheld that could constitute juror misconduct. See Armstrong, 897 S.W.2d at 364 n.2 (); see also Gonzales, 3 S.W.3d at 918 (); Brasher, 139 S.W.3d at 374 ().
Appellant correctly argues that he was entitled to rely on venire answers and discussions during State questioning. Armstrong, 987 S.W.2d at 364 n.1. Appellant complains juror eleven should have responded to the State's question about family members accused of sexual assault of a child. However, the prosecutor did not ask the jury panel whether anyone had a family member with a conviction for sexual assault of a child. The State's attorney specifically asked jurors whether "you, close friend or family member [were] either a victim of sexual assault or indecency by contact to the point where you don't think you could be fair to [appellant] or it would in some way inhibit your judgment." (Emphasis added). The juror's silence in response to this question does not show that he withheld material information. Similarly, the mere fact that other members...
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