Hicks v. State

• Decision Date: 31 March 2020
• Docket Number: NO. 01-18-00603-CR,01-18-00603-CR
• Citation: 606 S.W.3d 308
• Parties: Michael Edwin HICKS, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

606 S.W.3d 308

Michael Edwin HICKS, Appellant

v.The STATE of Texas, Appellee

NO. 01-18-00603-CR

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued March 31, 2020

Discretionary Review Refused October 7, 2020

Evelyn V. Keyes, Justice

A jury convicted appellant, Michael Edwin Hicks, of the third-degree felony of Driving While Intoxicated—Third Offense,¹ and assessed his punishment at sixteen years’ confinement and a $10,000 fine. In three issues, appellant contends that (1) the prosecutor committed misconduct and violated the Fifth Amendment and Brady v. Maryland by failing to disclose that a juror was the prosecutor's brother-in-law; (2) the prosecutor's withholding of this information violated the Michael Morton Act; and (3) the prosecutor's withholding of this information and the trial judge's failure to disclose that a different juror was her brother violated the Fifth and Sixth Amendment's guarantees of a fair and impartial jury and undermined confidence in the judicial proceedings.

We affirm.

Background

On February 16, 2015, Texas Department of Public Safety Trooper M. Westervelt was on patrol and "running stationary radar" while parked along Interstate 35 in Cooke County, Texas.² At around 10:30 p.m., Westervelt encountered appellant, who was driving 92 miles-per-hour in a 75 miles-per-hour speed zone. Westervelt conducted a traffic stop, and, as he approached appellant's truck, he saw an open half-gallon bottle of vodka that was half full sitting on the backseat floorboard. Westervelt smelled the odor of alcohol while speaking with appellant and noticed that appellant had slurred speech and bloodshot eyes. When appellant denied the presence of an open bottle of alcohol in the truck, he became belligerent and Westervelt decided to conduct standardized field sobriety tests. Westervelt concluded that appellant was intoxicated, and he placed appellant under arrest for driving while intoxicated (DWI). Westervelt obtained a search warrant for a blood draw, and analysis of appellant's blood sample reflected a blood alcohol concentration of 0.19.

During voir dire, the trial judge introduced the parties, including the two prosecutors, appellant, and the two defense attorneys. The judge told the veniremembers: "Now, remember that you took an oath that you will tell the truth[,] so be truthful when the lawyers ask you questions and always give complete answers. If you do not answer a question that applies to you, that violates your oath." Later, the judge stated: "Also, you know, you've just heard the case called and you might think, well, I might know a little bit about that or about the attorneys." The judge reminded the veniremembers not to talk among themselves or to anyone else on any subject connected with the trial. The judge also stated:

But if your beliefs are in conflict with the law in this case, or you think that you might have personal knowledge about this case or about the attorneys in this case or the parties in this case, then perhaps your service would be rather rendered in another case where those conflicts or that knowledge does not exist for you.

No veniremember volunteered that they were related to any participant in the case.

Near the end of the State's questioning, the prosecutor asked, "[D]o you have any questions before I sit down, because this will be the last time that I can talk to you?" Several veniremembers spoke up and mentioned that they had jobs related to law enforcement, and one veniremember stated that he had been a patrol officer in Cooke County and he probably knew the Trooper that the State planned to call as a witness. The trial judge instructed the prosecutor to say the name of the Trooper who would be testifying, and when the prosecutor identified Westervelt, the veniremember stated that Westervelt was a very close friend and the veniremember "would take his word" that his testimony was true. The prosecutor later said, "[Y]ou can know the trooper. All the judge is asking is that you can be fair and impartial to both sides."

Defense counsel began voir dire by asking if any of the veniremembers knew himself, his co-counsel, or appellant. One veniremember indicated that he had known defense counsel for several years in a "business, personal" capacity, and defense counsel asked if the veniremember could "set that aside and judge this trial fairly." The veniremember responded that he could do so. Later, another veniremember mentioned that she had seen appellant "around many times," and the trial judge instructed her not to "say any personal experience you've had with him." This veniremember stated that she could not put her past experience with appellant aside and decide the case based solely on the evidence presented in the courtroom, and the trial court later granted the State's challenge for cause against this veniremember. During voir dire, no veniremember mentioned that he knew or was related to the prosecutor or the judge, and neither the State nor the defense counsel specifically asked if any veniremember knew or was related to the prosecutor or the judge.

Several veniremembers were challenged for cause. After the parties exercised their peremptory strikes and the jury was seated, the trial judge asked if either party had "any objections or exceptions to the qualifying, examining, striking or seating of the jury as a whole or any individual member thereof." Both the prosecutor and defense counsel stated that they had no objection, and neither challenged "the qualifications or selection of any of the jurors or of the jury as a whole."

The jury found appellant guilty of the offense of DWI—third offense and assessed his punishment at sixteen years’ confinement and a $10,000 fine. Appellant filed a motion for new trial on the basis that the guilty verdict was obtained through juror misconduct. Specifically, appellant argued that "dishonest statements or omissions by one or more empaneled jurors impacting their eligibility as jurors" violated his Fifth and Sixth Amendment rights and his rights under the Texas Constitution.

Appellant also filed a motion seeking recusal of the trial judge. Appellant argued:

Defendant has information and belief that the Presiding Judge Janelle Haverkamp has personal knowledge of disputed evidentiary facts concerning Defendant's pending motion for new trial. Defendant further has information and belief that the Presiding Judge Janelle Haverkamp is within the third degree of relationship of an individual who is likely to be a material witness in the upcoming motion for new trial hearing. Defendant's basis is set out below.

Undersigned appellate counsel, Kyle Therrian, has conferred with trial counsel, Emmanuel Albarado and Jaime Gonzales regarding potential appealable matters. Trial counsel indicated they learned via a conversation between the presiding judge and prosecuting attorney that one of the presiding jurors was a sibling of the presiding judge. Both Mr. Albarado and Mr. Gonzales believe, to the best of their knowledge, that the jury panel was asked whether they knew any other person in the courtroom. To this inquiry trial counsel believes the panel provided either a negative or non-response, indicating there was no relation between members of the panel and any other person in the courtroom. Undersigned counsel believes this is a sufficient basis of fact to proceed with recusal.

Appellant argued that the juror's "denial of information to the defense denies the defense of the intelligent use of peremptory challenges" and that this right is the basis of his motion for new trial. The trial judge ultimately recused herself from ruling on appellant's motion for new trial, and a new judge was assigned to the case.

Defense counsel sought leave to amend his motion for new trial, arguing that, upon further investigation, he had learned that "the empaneled jury included one individual who is the brother of the presiding judge [who had recused herself from ruling on the motion for new trial] and another individual who is the brother-in-law of the prosecuting attorney." He argued that, in addition to juror misconduct, the prosecutor improperly withheld his relationship with a juror who was "incapable or unfit to serve on the jury" pursuant to the Code of Criminal Procedure. He argued that the prosecutor's failure to disclose this information violated appellant's Fifth and Sixth Amendment rights, Brady v. Maryland , and the Michael Morton Act, which governs discovery in criminal cases in Texas. He argued "these two jurors should not have been seated, and Defendant was entitled to know about their relationships." Defense counsel filed an amended motion for new trial raising these arguments.

At the hearing on appellant's motion for new trial, the prosecutor did not testify but he stated: "[M]y brother-in-law was on the jury and the judge's brother was on the jury as well." The prosecutor signed a stipulation to that effect. Appellant's trial counsel testified at the hearing. Appellant's appellate counsel and trial counsel had the following exchange:

Q: [W]ere you made aware of that fact that the prosecutor's brother-in-law was sitting on the jury?

A: Yes, I was made aware of the fact. I don't know by who, but it was during the trial or shortly thereafter. I can't recall when it was.

Q: Okay. But it wasn't made aware—you weren't made aware of that fact during voir dire; is that fair?

A: Yes, I was not made aware during voir dire.

Q: And nobody on the defense team was either?

A: No, none of them were.

Q: Now, you brought something to my attention just before we walked in here this morning with regard to other individuals who the—that—or another individual who was familiar to you on the jury, who was that individual?

A: Well, there was two. One was a gentleman that I bank with, which was Van Knight. And then another one was a client that we were presently representing. I believe his name was Cody Schubert.

Q: Okay. Did you bring that information—did you make

...