Ferguson v. State

• Decision Date: 18 July 1996
• Docket Number: No. 2-95-156-CR,2-95-156-CR
• Citation: 927 S.W.2d 251
• Parties: Jeffery Lynn FERGUSON, Appellant, v. The STATE of Texas, State. Fort Worth
• Court: Texas Court of Appeals

Page 251

927 S.W.2d 251

Jeffery Lynn FERGUSON, Appellant, v. The STATE of Texas, State.

No. 2-95-156-CR.

Court of Appeals of Texas,

Fort Worth.

July 18, 1996.

Discretionary Review Refused Oct. 30, 1996.

Robert G. Estrada, Wichita Falls, for Appellant.

Barry L. Macha, Crim. Dist. Atty., John Brasher, Asst. Crim. Dist. Atty., Wichita Falls, for Appellee.

Before LIVINGSTON, BRIGHAM and HOLMAN, JJ.

OPINION

HOLMAN, Justice.

Appellant Jeffery Lynn Ferguson was convicted by a jury of aggravated assault. Ferguson contends the trial court erred in: (1) overruling his challenge for cause to a prospective juror; (2) allowing a witness to testify in rebuttal, after the witness had seen the defendant testify on his own behalf during the punishment phase of trial; and (3) sustaining the State's motion for mistrial on a separate charge. We affirm.

Ferguson entered his estranged wife's house while she was taking a nap with one of their children. After talking with his wife for a short time, he stabbed her and told her that she was going to die. She testified that she had not given him permission to enter the house, nor had she heard him knock on the door or enter the house.

In Ferguson's first point of error, he contends that the trial court abused its discretion by overruling his challenge to a veniremember who had a bias against granting him probation. Specifically, he argues that some of the answers contained in the following exchanges demonstrated objectionable bias:

[The State]: ... [Has anybody in the jury pool] ever been involved in a situation involving family violence? ...

....

[Veniremember]: It would be my father's an alcoholic, and he abused my mother and my stepmother.

[The State]: Is he violent?

[Veniremember] When he's drinking.

[The State]: Okay. More than--Physically violent; not just verbally?

[Veniremember]: Right.

[The State]: Okay. Did he ever direct it towards you?

[Veniremember]: Sometimes.

[The State]: Okay. Do you feel like you could put whatever feelings--

[Veniremember]: To be totally honest, I'm very opposed to it.

[The State:] I understand. I mean I would hope that everyone is opposed to family violence or anyone beating up on anybody else. But if the Judge gave you the law and said "[t]his is the law," do you feel like you can look at the facts of this case and judge them on its merits and follow the law?

[Veniremember]: Probably, but kind of on the inside I'm not sure.

[The State]: Okay. I don't want to be pushing you, but we have to have a yes or a no answer. If the Judge instructed you to be fair, could you step back and say "[o]kay, I know this happened to me, but let me look at this situation and see what happened there"?

[Veniremember]: I think I could.

....

[Defense Counsel] Okay. You've tried to tell us that when a situation involves domestic violence you're going to have a hard time with that, won't you?

[Veniremember]: Probably.

[Defense Counsel]: Well, it's just not probably or--

[Veniremember]: Yes, I would.

....

[Defense Counsel]: Okay. Well, would it be fair to say that your personal experiences are--have such an effect upon your outlook that you'd have a real hard time being fair in any case that involved violence, not just domestic violence?

[Veniremember]: Maybe with spousal. Probably with spousal, yes.

[Defense Counsel] But especially with spousal, would you say you just couldn't be fair to the defendant? That's the accused.

[Veniremember]: It could depend on the circumstances, but, yes, if they were similar to mine.

....

[Defense Counsel]: Sure. Would you, for example--I know this is kind of hard, but could you--taking into account your personal history, would it be harder for you to consider as little as two years probation in an aggravated assault case?

[Veniremember]: Yes.

[Defense Counsel]: I mean it's down to the point where more than likely you couldn't honestly consider it, could you, with the intention of giving somebody probation?

[Veniremember]: Truthfully that would sound lenient to me.

[Defense Counsel]: Well, so lenient that because of your past you would not be able to consider it?

[Veniremember]: Well, I couldn't say definitely. I couldn't say yes or no definitely. Probably not.

....

[Defense Counsel]: I guess what I'm trying to do is if you can search your heart and tell me if you can--

[Veniremember]: Be fair in this case?

[Defense Counsel]: Yeah.

[Veniremember]: Yeah, I guess so.

Ferguson argues that the veniremember should have been disqualified because she could only grant probation under an extreme hypothetical set of facts. See Sunday v. State, 745 S.W.2d 436, 437-39 (Tex.App.--Beaumont 1988, pet. ref'd) (error not to strike veniremember who could only grant murder defendant probation in the event it was a mercy killing). We find that this case is distinguishable in that the veniremember did not restrict her consideration to a single extreme hypothetical and because her statements were equivocal.

The trial court was in a position to observe the veniremember's demeanor and to gauge her responses. The decision of a trial court regarding a challenge for cause will not be disturbed absent an abuse of discretion. Williams v. State, 773 S.W.2d 525, 536 (Tex.Crim.App.1988), cert. denied, 493 U.S. 900, 110 S.Ct. 257, 107 L.Ed.2d 207 (1989). We hold that the trial court did not abuse its discretion in refusing to strike the veniremember based on her equivocal responses. See Garza v. State, 622 S.W.2d 85, 92 (Tex.Crim.App. [Panel Op.] 1980) (op. on reh'g). Point of error one is overruled.

In his second point of error, Ferguson argues that the trial court abused its discretion in permitting rebuttal testimony in violation of "the rule" after the witness had remained in the courtroom during prior testimony. See TEX. R. CRIM. EVID. 613. During the punishment phase, the State called only Ferguson's ex-wife, ¹ who requested that Ferguson be sent to prison and testified about the toll the attack had taken on her and their son. Ferguson also testified at the punishment phase. He said that it was his habit to knock at the front door of his estranged wife's house, but that she had told him that if he received no answer there, he could go around to the back of the house (where there was an unlocked sliding glass door).

The State called Ferguson's ex-wife to rebut his claims that he had permission to enter the house. The defense objected that the ex-wife had been present during Ferguson's testimony, arguing that allowing her to testify would violate the rule. The trial court ruled that even if the rule was invoked in the guilt-innocence phase of trial, it had to be reasserted during the punishment phase to remain in effect.

We have found no case law that has directly addressed whether the rule must be reasserted during the punishment phase after it has been invoked during the guilt-innocence phase. Consequently, we look to the text of the rule itself:

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses,.... This rule does not authorize exclusion of ... (4) the victim, unless the victim is to testify and the court determines that the victim's testimony would be materially affected if the victim hears other testimony at trial.

TEX. R....