Herrera v. State

• Decision Date: 20 July 1983
• Docket Number: No. 07-82-0157-CR,07-82-0157-CR
• Citation: 665 S.W.2d 497
• Parties: Paul HERRERA, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 497

665 S.W.2d 497

Paul HERRERA, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 07-82-0157-CR.

Court of Appeals of Texas,

Amarillo.

July 20, 1983.

Discretionary Review

Refused Jan. 18, 1984.

Law Offices of O'Shea & Hall, P.C., Mark C. Hall, Lubbock, for appellant.

John T. Montford, Dist. Atty., Yvonne M. Faulks, Asst. Dist. Atty., Lubbock, for appellee.

Before DODSON, COUNTISS and BOYD, JJ.

BOYD, Justice.

Appellant Paul Herrera, Jr. brings this appeal from his conviction for the offense of voluntary manslaughter, Tex.Penal Code Ann. § 19.04. Punishment was assessed by the jury at twenty years confinement in the Texas Department of Corrections. For the reasons hereinafter set out, we reverse the judgment and remand the cause for a new trial.

On February 5, 1979, the body of Israel Duran was discovered in a turnrow east of Lubbock. The autopsy revealed that Duran had died from multiple gunshot wounds. The appellant, who was one of the last persons seen with Duran while the latter was still alive, was questioned by the Lubbock police some hours after Duran's body had been discovered. He gave the police a witness statement at the conclusion of the questioning. Appellant was also asked to take a polygraph test. The next day, appellant returned to the police station and took the polygraph test. Following the test, the appellant was questioned some more about the case and he then made a second statement in which he detailed his involvement in Duran's death. He was then arrested. Trial ensued, resulting in the conviction from which this appeal is taken. Additional pertinent portions of the evidence will be referred to in the discussion of the ground of error to which those facts relate.

In his appeal, appellant raises six grounds of error. Appellant contends, in his first ground, that the trial court erred in admitting into evidence his statement, in which he detailed his involvement in Duran's death, because said statement was made subsequent to an illegal arrest and was not freely given. In his second ground of error, appellant argues that the trial court erred in denying his motion for new trial because the record showed that juror Flournoy had failed to respond to the prosecution's and appellant's questions on voir dire examination. Appellant's third ground of error complains of the trial court's failure to grant his motion for mistrial because of the prosecutor's allegedly prejudicial and improper remarks to the jury during his closing jury argument. In his fourth ground of error, the appellant contends that the trial court committed reversible error when it refused to allow a demonstration in the presence of the jury of the speed in which the deceased arguably could have pulled a knife.

Appellant also argues, in his fifth ground, that the trial court erred in failing to grant his motion for mistrial when the deceased's mother collapsed in open court. He asserts that this "reprehensible action of victim's mother [was] so highly prejudicial and inflammatory as to negate the possibility of a fair trial proceeding." Finally, in his sixth ground of error, the appellant complains of the trial court's failure to sustain his objection to the charge because, he claims, the charge shifted the burden of proof to the defendant.

Since it is dispositive of this appeal, we will discuss initially appellant's second ground of asserted error. The alleged juror misconduct occurred during the voir dire examination. During the course of the prosecution's questioning, the following question was asked of the jury panel:

Ladies and Gentlemen, have any of you on the jury panel ever had a direct interest in the outcome of a criminal case? That is, have you ever been a complaining witness that testified for the State or the defense or possibly a member of your family or relative was interested in the outcome of a criminal case? If so, would you raise your hands. [Emphasis added.]

None of the proposed jurors raised their hands or otherwise answered affirmatively. Subsequent to trial but prior to the jury's verdict, it was discovered that juror Renee Flournoy had been a complaining witness in an assault case approximately three or four months earlier.

Initially, we note that issues of fact as to jury misconduct raised at a hearing on a motion for a new trial are for the determination of the trial judge and the judge's decision will not be reversed unless an abuse of discretion is shown. Beck v. State, 573 S.W.2d 786 (Tex.Cr.App.1978). An abuse of discretion will have occurred when a biased or prejudiced juror is selected without fault or lack of diligence on the part of defense counsel. Brandon v State, 599 S.W.2d 567 (Tex.Cr.App.1979), vacated on other grounds, 453 U.S. 902, 101 S.Ct. 3134, 69 L.Ed.2d 988 (1981). When such an abuse of discretion occurs, a new trial should be granted. Id.; Von January v. State, 576 S.W.2d 43 (Tex.Cr.App.1978).

The voir dire process is designed to insure, to the fullest extent possible, that an intelligent, alert, disinterested, impartial and truthful jury will perform the duty assigned to it. Jones v. State, 596 S.W.2d 134, 137 (Tex.Cr.App.1980). The record shows that juror Flournoy had, prior to appellant's trial, been the victim of an assault. While the offenses of murder and voluntary manslaughter are distinct from the offense of assault, there are significant similarities, particularly in that all three offenses involve a physical attack on the body. Flournoy could reasonably have been expected to have been influenced by her own recent experience, and that influence might have been sufficient for her to vote for a guilty verdict, even though the evidence may not have established such guilt. Her failure to respond to the question deprived defense counsel of an opportunity to explore the existence of bias and prejudice on her part. In such circumstances, we think good ground exists for a new trial. See Von January v. State, 576 S.W.2d 43 (Tex.Cr.App.1978).

We think the case law mandates this conclusion. In Salazar v. State, 562 S.W.2d 480 (Tex.Cr.App.1978), a juror had failed to disclose during voir dire that he had been an eyewitness to a sexual assault on his own daughter by a Mexican-American male about five years earlier and that he had been a complaining witness in the subsequent trial. The defendant Ruben Salazar was charged with the offense of indecency of a child. Salazar was also a Mexican-American male. The Court of Criminal Appeals concluded that the juror was incapable of being fair and impartial toward the defendant because of the similarities between the offense charged against Salazar and the offense committed against the juror's daughter. In Norwood v. State, 123 Tex.Cr.R. 134, 58 S.W.2d 100 (1933), the defendant was charged with committing the offense of rape. A juror had failed to disclose during the voir dire examination that his sister had previously been the victim of a sexual offense. The Court of Criminal Appeals ruled that this juror had failed to disclose a material fact concerning his ability to render a fair and impartial verdict and that the jury's verdict, consequently, could not stand. As the Norwood court noted:

Had the juror revealed the fact that his sister had suffered an experience similar to that of the prosecutrix, [the defendant] would not have accepted him. Relying upon the answer of the juror, [the defendant] was deprived of his right to peremptorily challenge him.

Similarly, in the case at bar, had juror Flournoy revealed the fact that she had suffered an assault and that she had been a complaining witness, the appellant in all reasonable probability would not have accepted her. "Where a juror withholds material information in the voir dire process, the parties are denied the opportunity to exercise their challenges, thus hampering their selection of a disinterested and impartial jury." Salazar v. State, 562 S.W.2d at 482.

The State cites several cases in which the Court of Criminal Appeals upheld the trial court's denial of a motion for mistrial after admitted juror misconduct had been brought to the attention of the trial court. However, we believe these cases are distinguishable from the instant case. In Tonche v. State, 478 S.W.2d 93 (Tex.Cr.App.1972), the juror misconduct consisted of a juror being allowed to ask the trial judge several questions following the defendant's testimony but before the jury had retired to deliberate. In Stein v. State, 514 S.W.2d 927 (Tex.Cr.App.1974), the juror misconduct consisted of a juror being approached by a reporter, before the parties had rested, who told her, "I wouldn't want to be in your shoes." In McMillon v. State, 505 S.W.2d 872 (Tex.Cr.App.1974), the defendant charged that a juror had failed to disclose during voir dire examination that she (the juror) had had substantial contact with the defendant prior to trial in her profession as a practicing attorney. The juror denied that she had had any contact with the defendant prior to the trial. The Court of Criminal Appeals ruled that the trial court was entitled to believe the juror's assertion and to disbelieve the defendant's and, thus, the evidence failed to show juror misconduct. In none of these cases, did the proven juror misconduct have any bearing on the juror's ability to render a fair and unbiased verdict. The juror misconduct in the instant case, in stark contrast, does go directly to the juror's ability to be impartial and fair.

While the record shows that juror Flournoy withheld material information from the court during voir dire which impacted on her ability to render a fair and impartial verdict, we must also find that the appellant was without fault or lack of diligence in the court's failure to uncover this material information, in order for a reversal to be mandated. Here, the prosecutor expressly asked the jurors, including juror Flournoy, if any of them had ever been a complaining witness in a criminal trial....