Moore v. State

• Decision Date: 23 August 2001
• Docket Number: No. 2-00-135-CR,2-00-135-CR
• Parties: (Tex.App.-Fort Worth 2001) OTIS JUNIOR MOORE, JR., APPELLANT v. THE STATE OF TEXAS, STATE
• Court: Texas Court of Appeals

Page 529

54 S.W.3d 529 (Tex.App.-Fort Worth 2001)

OTIS JUNIOR MOORE, JR., APPELLANT v. THE STATE OF TEXAS, STATE

No. 2-00-135-CR

Court of Appeals of Texas, Fort Worth

AUGUST 23, 2001

Rehearing Overruled Sept. 20, 2001

FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

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PANEL A:CAYCE, C.J.; DAY and WALKER, JJ.

OPINION

SUE WALKER, JUSTICE

INTRODUCTION

A jury convicted appellant Otis Junior Moore, Jr., of burglary of a habitation with the intent to commit indecency with a child. At the punishment phase of trial, the jury found an enhancement paragraph true.¹ The trial court then assessed a mandatory life sentence in accordance with Texas Penal Code section 12.42(c)(2). Tex. Penal Code Ann. § 12.42(c)(2) (Vernon Supp. 2001). In eight points on appeal, appellant contends that the trial court erred by granting the State's challenges for cause to five veniremembers and by permitting the State to amend the indictment at trial, that the evidence is factually insufficient to support his conviction, and that penal code section 12.42(c)(2) is unconstitutional. We will affirm.

BACKGROUND FACTS

At trial, A.H. testified that she was babysitting her two cousins at her aunt's house on Van Natta Street in Fort Worth on February 15, 1998. She identified appellant as "Buddy" and said she went to Buddy's house, two doors down, to borrow a pair of scissors. Later, appellant came to the door of her aunt's house and asked for the scissors. A.H. handed the scissors to appellant and tried to shut the door.

At that point, appellant grabbed A.H's arm, pulled her outside, and said, "Swear to God you won't tell nobody." A.H. said, "Tell nobody what?" Appellant then said, "Can we get together sometime?" A.H. said, "What? I'm 11 years old." A.H. interpreted appellant's statement to mean that he wanted sex. She could smell liquor on appellant's breath and knew he was drunk.

A.H. tricked appellant into looking another direction so she could get back into the house and close the door. Appellant stumbled, and A.H. opened the door and entered the house. Before she could close the door, appellant "put his foot in the door." A.H. slammed the door hard against appellant's leg four times. When appellant moved his leg, she slammed the door shut and locked it. A.H. then closed and locked all the windows and the back door.

About five minutes later, appellant started beating on the front door and windows of the house and demanding that A.H open the door. A.H. got a butcher knife out of a kitchen drawer and took the children she was babysitting to a back room and locked the door to the room. She called the police and her grandmother and waited in the hallway.

A.H. testified that appellant had not previously said "anything to [her] in a sexual manner," but did say he "would stare a lot." She was aware that appellant had been shot and injured several months before the incident. A.H.'s version of the events at trial substantially coincided with a written statement she gave to police shortly after the incident. Appellant did not testify.

CHALLENGES FOR CAUSE

In points one through five, appellant contends the trial court reversibly erred in granting, over his objection, the State's challenges for cause to five veniremembers. The State challenged for cause veniremembers one, five, eight, thirty-six, and thirty-eight on the basis that they were predisposed to give less credibility to witnesses under the age of eighteen.² After individual questioning, the trial court granted all five of the State's challenges. Appellant contends these veniremembers were not shown to be "absolutely disqualified." He asserts that "[t]he inability of the prospective jurors to treat child testimony like that of an adult is not a basis for a challenge for cause" and that the State improperly attempted "to bind the jurors and secure their agreement concerning how to view a certain class of . . . evidence." Appellant further contends that the effect of granting the State's challenges for cause "was to grant the State [five] extra peremptory challenges improperly" and to deny him a qualified juror for his trial. The State, on the other hand, argues that the trial court properly sustained the State's challenges for cause to these five veniremembers because they would "automatically grant a child witness less credibility based on age alone."

A trial court's decision regarding a challenge for cause will not be disturbed absent an abuse of discretion. Staley v. State, 887 S.W.2d 885, 893 (Tex. Crim. App. 1994), cert. denied, 514 U.S. 1020 (1995); Williams v. State, 773 S.W.2d 525, 536 (Tex. Crim. App. 1988), cert. denied, 493 U.S. 900 (1989); Ferguson v. State, 927 S.W.2d 251, 253 (Tex. App. Fort Worth 1996, pet. ref'd). Because the trial court is able to gauge a veniremember's sincerity and demeanor, we give great deference to the trial court's decision concerning a challenge for cause. Butler v. State, 872 S.W.2d 227, 234 (Tex. Crim. App. 1994), cert. denied, 513 U.S. 1157 (1995); Pyles v. State, 755 S.W.2d 98, 106 (Tex. Crim. App.), cert. denied, 488 U.S. 986 (1988). Therefore, to show error in the trial court's grant of the State's challenges for cause, an appellant must show either that the trial court applied the wrong legal standard in sustaining the challenge or that the trial court abused its discretion in applying the correct legal standard. Ladd v. State, 3 S.W.3d 547, 562 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1070 (2000); Jones v. State, 982 S.W.2d 386, 388-89 (Tex. Crim. App. 1998), cert. denied, 528 U.S. 985 (1999). We must uphold the trial court's decision if it was correct under any theory of law applicable to the case, even if the trial court gave an incorrect reason for its decision. Jones, 982 S.W.2d at 389.

A venireman is challengeable for cause under code of criminal procedure article 35.16(a)(9) if he cannot impartially judge the credibility of witnesses. Tex. Code Crim. Proc. Ann. art. 35.16(a)(9) (Vernon 1989); Ladd, 3 S.W.3d at 560. However, this means only that jurors must be open-minded and persuadable, with no extreme or absolute positions regarding the credibility of any witness. Ladd, 3 S.W.3d at 560. Veniremembers are not challengeable for cause simply because they would give certain classes of witnesses a slight edge in terms of credibility, for the reason that "[c]omplete impartiality cannot be realized as long as human beings are called upon to be jurors." Id. (holding trial court properly denied challenge for cause based on veniremember's tendency to believe policemen and doctors slightly more than other witnesses); Jones, 982 S.W.2d at 389 (holding trial court erred in granting State's challenge for cause simply because veniremember stated she would be more skeptical of accomplice witnesses than of witnesses generally).

The record reflects that the five venirepersons struck based on the State's challenges for cause all stated that they would not give a child witness's testimony the same degree of credibility as an adult witness's testimony. The struck venirepersons agreed that "as a group of people," "people under the age of 18 . . . . would simply start off as less credible as far as you're concerned by virtue of that fact and that fact alone."

We recently addressed the issue of challenges for cause based on a venireperson's bias or prejudice concerning the testimony of a child witness in Garza v. State, 18 S.W.3d 813, 820-21 (Tex. App. Fort Worth 2000, pet. ref'd). In Garza, the prosecutor asked:

And maybe because of someone's life experience, because they have children or they don't have children, they think, you know what, any kid, any child, if their head isn't above this railing when they walk in here, I am not going to believe a word they say. Is there anybody that feels that way?

Or maybe just because they are a child, a little person, under this height, that you know what, if you bring somebody in shorter than this let's say a particular age, or under seven, under seven, I'm sorry, I can't believe them.

Id. at 820. We held that the prosecutor's inquiry was proper and that a potential juror who could not believe a witness simply because the witness was a child was properly excused for cause. Id. (citing Perez v. State, 960 S.W.2d 84, 88 (Tex. App. Austin 1997, no pet.) and Davis v. State, 894 S.W.2d 471, 474 (Tex. App. Fort Worth 1995, no pet.)).

Here, the prosecutor did not inquire whether the veniremembers "could not believe a witness" based on the witness's age. [Emphasis added.] Instead, the prosecutor's questioning of the challenged veniremembers focused on whether a child witness starts out with a little less credibility than an adult witness. Veniremembers are not challengeable for cause simply because they would give certain classes of witnesses a slight edge in terms of credibility. Ladd, 3 S.W.3d at 560; Jones, 982 S.W.2d at 389. However, two of the veniremembers challenged for cause by the State, number eight, Bounds, and number thirty-eight, Branscum, not only expressed the view that a child witness starts out with a little less credibility, but went on to express an extreme or absolute position regarding the credibility of child witnesses.

Veniremember Bounds stated during individual voir dire that a child witness started out with less credibility than an adult witness and indicated that he would wait and hear what the child had to say. He then stated, "but I've probably already made the decision in my mind." Veniremember Branscum said during individual voir dire that she would automatically give a child witness less credibility than an adult witness and explained that she worked in day cares and "I can see that in one aspect, the majority of it, they will lie to get their way." Thus, the record reflects that veniremembers Bounds and Branscum were not genuinely open-minded and...