Mount v. State

• Decision Date: 15 February 2007
• Docket Number: No. 14-05-00842-CR.,14-05-00842-CR.
• Citation: 217 S.W.3d 716
• Parties: Mike Seymour MOUNT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

217 S.W.3d 716

Mike Seymour MOUNT, Appellant, v. The STATE of Texas, Appellee.

No. 14-05-00842-CR.

Court of Appeals of Texas, Houston (14th Dist.).

February 15, 2007.

Anthony Osso, Houston, for appellant.

Jessica Akins McDonald, Houston, for appellee.

Panel consists of Justices ANDERSON, EDELMAN, and FROST.

SUBSTITUTE MAJORITY OPINION

KEM THOMPSON FROST, Justice.

We withdraw our opinion of August 8, 2006, and we issue this opinion in its place.

I. FACTUAL AND PROCEDURAL BACKGROUND

On Saint Patrick's Day 2005, Houston Police Officer Kenneth Dagnault received a police dispatch regarding a possible vehicle theft near 5177 Richmond, involving a white Cadillac pickup truck. A few minutes later, Officer Dagnault saw what he described as "a tan or goldish colored or silver, light 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 ("DWI").

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 and assessed punishment at three days' confinement in the Harris County Jail and a $400 fine.

II. ISSUES PRESENTED

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 in which he allegedly was seized and searched without a warrant or probable cause.

III. ANALYSIS

A. Did the trial court abuse its discretion in denying appellant's request to strike venire member number three for 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, 189 S.W.3d 743, 750-51 (Tex.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. 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. Estate of Puentes v. HCCI-San Antonio, Inc., 159 S.W.3d 87, 95 (Tex.2005). Deference to the trial court is especially critical when an appellate court is reviewing a record that demonstrates uncertainty in a venire member's responses. Because the trial court is in the best position to evaluate the prospective juror's sincerity and ability to be fair and impartial, the appellate court gives great deference to the trial court. Goode v. Shoukfeh, 943 S.W.2d 441, 453 (Tex.1997).

The record does not conclusively show that Denton's feelings were so strong in favor of a party that she would base her verdict on those feelings and not on the evidence. Although Denton stated that she dealt with death claims (that sometimes resulted from DWI accidents), she affirmatively stated that it probably would not affect her unless there was a child involved. Moreover, the trial court was in a better position to evaluate Denton's voir dire responses than this court, and the trial court specifically stated, in regard to Denton, that "the question she was toying with was the death of a child. We don't have that." The trial court was keenly aware of Denton's answers and concluded that she could be impartial in this case. We find no abuse of discretion. See Hafi v. Baker, 164 S.W.3d 383, 385 (Tex.2005) (concluding that a juror who worked as defense attorney in medical malpractice actions was not biased as a matter of law in medical malpractice action although he suggested that, because of his career as a defense attorney, he could relate to the defendants' perspective); Cortez, 159 S.W.3d at 93 (holding that disqualification of venire member for cause was not required, though during voir dire venire member said that, as an insurance adjuster, he had...