Cuellar v. State

• Decision Date: 05 December 1996
• Docket Number: No. 13-95-047-CR,13-95-047-CR
• Citation: 943 S.W.2d 487
• Parties: Gerardo CUELLAR, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 487

943 S.W.2d 487

Gerardo CUELLAR, Appellant, v. The STATE of Texas, Appellee.

No. 13-95-047-CR.

Court of Appeals of Texas,

Corpus Christi.

Dec. 5, 1996.

Rehearing Overruled April 10, 1997.

Crispin (C.J.) Quintanilla, III, Quintanilla & Palacios, McAllen, for Appellant.

Rene Guerra, District & County Attorney, Theodore C. Hake, Traci A. Sellman, Asst. Criminal District Attorneys, Edinburg, for Appellee.

Before SEERDEN, C.J., and YANEZ and CHAVEZ, JJ.

OPINION

YANEZ, Justice.

Gerardo Cuellar was indicted for the offense of involuntary manslaughter. After pleading not guilty, he was tried by a jury and found guilty, and punishment was assessed at five years confinement. By six points of error, Cuellar brings this appeal, alleging the trial court failed to correct or cure misconduct on the part of the jury, and complaining that appellant was denied effective assistance of counsel. We affirm.

Appellant was indicted after his vehicle collided with another vehicle in McAllen, Texas, on the afternoon of February 28, 1991, fatally injuring the driver of the other vehicle. The State presented evidence that appellant was driving at an excessively high rate of speed at the time of the accident, and it also presented evidence which suggested appellant was intoxicated at the time. An accident reconstructionist testified that, based on his investigation of the accident scene, and his tests of the vehicle models involved, he could determine that appellant was driving between 70 and 80 miles per hour in the 35 mile per hour zone. Appellant's blood alcohol level was determined to be 0.08 when measured approximately one-and-a-half hours after the accident. Appellant does not contest the sufficiency of the evidence presented against him at trial.

Appellant's first five points complain about the conduct of the jury members, and the failure of the court to take corrective measures after learning about jury misconduct. In particular, appellant argues that his right to a fair trial was fatally tainted because: 1) a prospective juror told the panel that Cuellar was a gang-member who killed someone, 2) a juror withheld material information during voir dire, and 3) the jury received evidence after it retired to deliberate, and decided his sentence in a manner that was not a fair expression of opinion by the jurors. By point six, appellant complains that he was denied the effective assistance of counsel at trial.

In point one, appellant complains that during voir dire, a prospective juror informed the panel that appellant was a member of a gang, and that the trial court committed reversible error by failing to either instruct the jury sua sponte to disregard the comment, or declare a mistrial. When the State asked the jurors if anyone knew, or thought they knew the defendant, one prospective juror stated "Well, if he is the gang member in McAllen, yes. I mean, I don't know him, but I know the boy that he killed." The prosecutor moved to question this potential juror on individual voir dire, outside the presence of the other prospective jurors, and the court granted the request. That person was eventually excused for cause because she had a hearing problem.

In order to preserve error for appellate review, counsel must make a timely and specific objection. TEX.R.APP.P. 52(a); Janecka v. State, 823 S.W.2d 232, 243 (Tex.Crim.App.1990). Absent such objection, error is waived unless it is so egregious that the failure to object does not waive the error. Janecka, 823 S.W.2d at 243 n. 2, (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984)). In the instant case, counsel for appellant did not lodge any objection to this allegedly prejudicial comment, nor did he request that the court instruct the jury to disregard it. Thus, we must consider any error waived unless we find that the comment was so egregious and damaging to the appellant that no objection was required to preserve error. We do not find it so.

Appellant mischaracterizes the tone of the proposed juror's comment, as it is reflected in the record. The comment was not definitive in nature. It was qualified with "if he is a gang-member...." Moreover, the speaker admitted that she did not actually know the appellant. Her comment, even if construed as an assertion that appellant was a gang member, was not so egregious that its mere utterance deprived appellant of a fair trial. Appellant's relationship to a gang, or his actions thereon, has no bearing on his guilt on the involuntary manslaughter charge. Thus, the trial court was not required to sua sponte instruct the jury to disregard the comment. Whatever effect the comment might have had would have been alleviated through an instruction to disregard the comment, had trial counsel requested it. See, Decker v. State, 894 S.W.2d 475, 476-77 (Tex.App.--Austin 1995, pet. ref'd); Rideau v. State, 751 S.W.2d 248, 249 (Tex.App.--Beaumont 1988, no pet.) Defense counsel did not request such instruction from the court, and therefore waived this point on appeal.

Juror Misconduct: Withholding Material Information

In points two and three, appellant complains that one jury member withheld material information during voir dire, and consequently the trial court erred in denying his timely request for a new trial. In particular, appellant protests the failure of a juror Leopoldo Ramirez to disclose in a jury questionnaire the fact that he had previously been a witness in a criminal case or the fact that he had a brother who was a probation officer.

In the instant case, the following two questions were posed to potential jurors in a jury questionnaire prior to formal voir dire:

1) Are any of your relatives law enforcement officers?

2) Have you ever been an accused, complainant, or witness in a criminal case? Ramirez answered each of these questions in the negative. Neither of these questions, nor the responses to the questions, were inquired into again during voir dire. Subsequent to the trial, appellant retained different counsel, who found out that Ramirez had a brother who was a juvenile probation officer in another county, that Ramirez had himself been an officer with the Edinburg Police Department in the past, and had been a witness in a DWI case at least once before in that capacity. Had Ramirez been truthful, the defense argued, it would have been able to inquire further into Ramirez's past and potential biases, and would have at least exercised a peremptory strike against him. This particular instance of misconduct was not specifically referred to in appellant's motion for new trial, however.

When asked about his responses on the questionnaires at the hearing on the motion for new trial, Ramirez explained that he essentially answered the way he did because he misunderstood the questions. ¹ In response to the trial court's request, each of the parties submitted post-hearing memoranda. Appellant added the withholding of material information by Ramirez as an additional instance of jury misconduct in this memoranda, to which the State objected to as untimely. The trial court denied counsel's request for a new trial, and appellant challenges this decision on appeal.

A motion for new trial is the proper course to be taken in preserving alleged jury misconduct error for appeal. Trout v. State, 702 S.W.2d 618, 620 (Tex.Crim.App.1985). Adequate grounds for a new trial exist when a juror withholds material information in the voir dire process. Jones v. State, 596 S.W.2d 134, 138 (Tex.Crim.App.1980); Salazar v. State, 562 S.W.2d 480, 482 (Tex.Crim.App. [Panel Op.] 1978). When a juror wrongfully withholds material information, the parties are denied the opportunity to exercise their challenges, thus hampering their selection of a disinterested and impartial jury. ² Jones, 596 S.W.2d at 138. As the Court of Criminal Appeals explained in Von January v. State, 576 S.W.2d 43, 45 (Tex.Crim.App.1979), "[w]hen a partial, biased, or prejudiced juror is selected without fault or lack of diligence on the part of defense counsel, who has acted in good faith upon the answers given to him on voir dire not knowing them to be inaccurate, good grounds exist for a new trial."

Ordinarily, however, counsel bears the burden of asking those questions during voir dire which are calculated to bring out that information which might indicate a juror's inability to be impartial. Armstrong v. State, 897 S.W.2d 361, 363-64 (Tex.Crim.App.1995) (citing Jones, 596 S.W.2d at 137). The failure of a juror to disclose material information is not considered to have been "withheld" unless defense counsel asked such questions during voir dire. Id.

We may not consider the merits of points two and three because appellant did not raise them in his motion for new trial, and therefore has not preserved this issue on appeal. Although it appears that the legislature amended the rules governing the contents of a motion for new trial to allow for more general pleadings, the Court of Criminal Appeals has held that if an instance of jury misconduct is not set forth in the motion, but is alleged in an attached affidavit or at the hearing on the motion, the trial court is without authority to entertain such additional instance. Trout, 702 S.W.2d at 620, (citing Harvey v. State, 150 Tex.Crim. 332, 201 S.W.2d 42, 45 (1947)). In order for a particular instance of juror misconduct to be properly before the court, that instance of jury misconduct must be included in the motion for new trial, which must also be accompanied by an affidavit of a juror or some other person in position to know the facts, or else include some reason or excuse for why such affidavit is omitted. See Trout, 702 S.W.2d at 620, and Stephenson v. State 494 S.W.2d 900, 908 (Tex.Crim.App.1973). This general rule serves the dual purpose of discouraging "fishing expeditions" in the hopes of impeaching a jury verdict, as well as providing reasonable notice to both the trial court and the State as to the...