Mount v. State, No. 14-05-00842-CR (Tex. App. 8/8/2006)
| Decision Date | 08 August 2006 |
| Docket Number | No. 14-05-00842-CR.,14-05-00842-CR. |
| Parties | MIKE SEYMOUR MOUNT, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the County Criminal Court at Law Number Eleven, Harris County, Texas, Trial Court Cause No. 1291992.
Affirmed.
Panel consists of Justices ANDERSON, EDELMAN, and FROST (EDELMAN, J., concurring).
Appellant Mike Seymour Mount appeals his conviction for the misdemeanor offense of driving while intoxicated ("DWI"). In four issues, appellant asserts that the trial court erred in failing to strike an allegedly biased venire member for cause, and in denying his motion to suppress. We affirm.
On Saint Patrick's Day 2005, Houston Police Officer Kenneth Dagnault received a police dispatch regarding a possible vehicle theft around 5177 Richmond, involving a white Cadillac pickup truck. A few minutes later, Officer Dagnault saw a pearl-colored Cadillac pickup truck being driven about a half of a block from that location. He followed the vehicle and initiated a "felony stop." The driver of the Cadillac truck, later identified as appellant, pulled the vehicle into a parking lot and stopped. Officer Dagnault, with back-up officers, approached the vehicle with guns drawn. The officers accompanying Officer Dagnault opened the doors of the vehicle and asked that appellant and his companion exit the vehicle. Both men were patted down for weapons, while Officer Dagnault checked appellant's driver's license and the registration of the vehicle. Further investigation revealed that the vehicle was registered to appellant's wife, and, in fact, was not stolen. However, during this investigation, Officer Dagnault detected a strong odor of alcohol on appellant, and noticed that appellant's eyes were red, glassy, and bloodshot. Thus, although the investigation eliminated appellant as a suspect in the unauthorized use of the motor vehicle he was driving, as a result of the stop, appellant fell under suspicion for driving while intoxicated.
Officer Dagnault called a DWI unit to come to the scene and test appellant for alcohol intoxication. Officer Stacy Pierce, assigned to the DWI task force, arrived shortly thereafter and attempted to conduct several field sobriety tests, most of which appellant refused to perform. Appellant also refused to consent to a breath test for alcohol, and refused to sign a written acknowledgment that he had received his DWI warnings. Appellant admitted that he had consumed approximately two beers. Officer Pierce concluded that appellant had lost the normal use of mental and physical faculties and placed appellant under arrest.
Appellant was charged by information with a misdemeanor DWI offense. At trial, the jury found appellant guilty, sentenced him to three days' confinement in the Harris County Jail, and assessed a $400 fine.
Appellant asserts the following issues on appeal:
(1)-(2) The trial court abused its discretion in denying appellant's (1) request to strike venire member number three, for cause and (2) request for a hearing to further examine this venire member's ability to be fair and impartial.
(3)-(4) The trial court abused its discretion in denying appellant's motion to suppress the fruits of an allegedly unlawful arrest and detention where he was seized and searched without a warrant or probable cause.
In two issues, appellant challenges the trial court's denial of his (1) request to strike venire member number three, Charlotte Ann Denton, for cause, and (2) request for a hearing to further examine Denton's ability to be fair and impartial. During voir dire, Denton explained that she was a death claims analyst. When asked whether her line of work would affect her ability to be fair, the following exchange occurred:
Defense Counsel: Does it involve DWI accidents
Venireperson No. 3: I'm a death claims analyst
I pay death claims
Defense Counsel: DWI's
Venireperson No. 3: Well, if someone dies, yes
I would
Defense Counsel: Would that experience affect your
ability in this case to—
Venireperson No. 3: Probably not as long as there
wasn't a child involved. Because I have two children, I tend
to—
Defense Counsel: "Probably not" does not work.
I've got to have a definitive. I always tell people to err on the side of caution. If you are not sure, I always tell them to err on the side of caution. So we'll call you up individually.
Later, when the parties were making their peremptory strikes, appellant's counsel objected as follows:
Defense Counsel: Judge, I'm going to ask that No.
3 be challenged for cause. She was the one who it—I asked
her about her job and she does death claims and she said it
would probably affect her. I told her that we would bring
her up only because of the time element involved.
The Court: That's denied.
Defense Counsel: Can I bring her up, Judge?
The Court: That's denied.
. . .
Defense Counsel: Just for clarification on the
record, my understanding when we started, you were going to
allow us to bring them up if we had any questions of them.
So that's why I left — I just wanted to be clear on it, I was
running out of time and I told her to think about it and we
would bring her up, we would have to answer yes or no. I told
her "probably" wouldn't be sufficient and I was going to move
on it.
The Court: What I said was if you think it is going
to screw up the whole panel, then you can bring them. Also,
the question she was toying with was the death of a child.
We don't have that.
Defense Counsel: She doesn't know that.
The Court: Okay.
Defense Counsel: Judge, for the record, I'm going
to request an extra peremptory challenge, I'm having to use
one of my peremptory challenges on No. 3, juror No. 3, Charlotte
Denton. And, by doing so, I'm having to take another juror
that I would use a strike on. At this time I'm requesting
a challenge and once I submit my strikes and the State submits
their strikes, then I would identify the juror that I'm having
to take, Your Honor, that I don't have a strike to use on.
The Court: All right, sir. That will be denied.
Defense Counsel: Judge, I used—I would use the
strike that I'm using on Ms. Denton, No. 3, I would use that
strike—or, if the Court granted me an extra strike, I would
use it on No. 20, Your Honor. He noted to be victim of a DWI.
The Court: All right, sir.
Defense Counsel: Therefore I wouldn't want him
as a juror in this case.
The Court: All right.1
We cannot conclude, as appellant suggests, that the answers Denton gave demonstrate that she would be unfair or biased in this case. Denton never said she could not be fair to appellant; she merely indicated that her judgment might be impacted in a DWI accident case involving a child. This case, however, does not involve a DWI accident or injury or death to any person.
Bias is an inclination toward one side of an issue rather than to the other.See Hyundai Motor Co. v. Vasquez, 49 Tex. Sup. Ct. J. 420, at *3-4 (Tex. March 10, 2006). Disqualification of a venire member extends to bias or prejudice against the subject matter of the suit as well as against the litigants. Id. at *4. To disqualify a potential juror for bias as a matter of law, the record must show conclusively that the potential juror's state of mind led to the natural inference that she would not act with impartiality. Id. A venire member's indication that she cannot be fair and impartial because her feelings are so strong in favor of a party that she will base her verdict on those feelings and not on the evidence supports a successful challenge for cause. Id.
If a prospective juror's bias or prejudice for or against a party in a lawsuit is established as a matter of law, the trial court must disqualify that person from service. TEX. GOV'T CODE ANN. § 62.105(4) (Vernon Supp. 2005); Malone v. Foster, 977 S.W.2d 562, 564 (Tex. 1998). If bias or prejudice is not established as a matter of law, whether the potential juror is sufficiently biased or prejudiced to merit disqualification is a factual determination the trial court must make using its discretion. Malone, 977 S.W.2d at 564. We do not reverse on appeal in the absence of an abuse of discretion. See Cortez ex rel....
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