State v. Morales
| Decision Date | 14 May 2008 |
| Docket Number | No. PD-0462-07.,PD-0462-07. |
| Citation | 253 S.W.3d 686 |
| Parties | The STATE of Texas v. David MORALES, Appellant. |
| Court | Texas Court of Criminal Appeals |
Penny Lee Andersen, El Paso, for Appellant.
Jeffrey L. Van Horn, State's Prosecuting Attorney, Austin, for the State.
Before the court en banc.
The appellant was indicted for the offenses of aggravated sexual assault of a child and indecency with a child. In a single trial, a jury found the appellant guilty of both offenses and assessed his punishment at thirty-five years' confinement for the aggravated sexual assault offense and twenty years' confinement for the indecency offense. The appellant appealed his conviction based on the trial court's refusal to grant a challenge for cause against prospective juror Robyn Wyatt, an El Paso County assistant district attorney, and, secondly, he makes a claim of ineffective assistance of counsel on the part of his trial attorneys for failing to preserve the challenge for cause for appeal.1 The Eighth Court of Appeals reversed the trial court's judgment of conviction based on the appellant's ineffective assistance of counsel claim; and remanded the cause for a new trial.2
We granted the State Prosecuting Attorney's [SPA] petition for discretionary review to determine whether an assistant district attorney who has not been shown to be disqualified to serve on the jury because of actual bias is nevertheless disqualified to serve because of an implied bias. Alternatively, we granted discretionary review to determine whether the court of appeals erred in failing to consider whether trial counsel's failure to use a peremptory challenge against Wyatt was a strategic decision.3 Without reaching the first question, we hold that the court of appeals erred in holding, at least on the basis that it did, that counsel rendered ineffective assistance of counsel.
One of the prospective jurors summoned for the jury trial in this case was Robyn Wyatt, who was a prosecutor in the El Paso County District Attorney's Office, the same office that was prosecuting the appellant. During voir dire, Wyatt maintained without contradiction that she could be fair and impartial despite her employment and her acquaintance with the State's prosecutors, investigators, law enforcement personnel, the judge, and defense counsel. Additionally, Wyatt stated that she had not worked on the appellant's case. The appellant, however, challenged Wyatt for cause, arguing that she was an actual party to the case because she was a member of the district attorney's office. The trial judge denied the appellant's challenge, noting that Wyatt was not shown to be biased and that Article 35.16 of the Code of Criminal Procedure does not make her subject to a challenge for cause based solely upon her occupation as an assistant district attorney.4 As the court of appeals noted, the appellant did not properly preserve error, if any, because his trial counsel did not exercise a peremptory challenge on Wyatt.5 Wyatt subsequently served as the presiding juror on the jury that convicted the appellant.
The appellant filed a motion for new trial in which he alleged, inter alia, that trial counsel were ineffective in failing to preserve the trial court's error in denying his challenge for cause against Wyatt. Attached to the motion were affidavits from both of the appellant's trial attorneys in which they said that they "left [Wyatt] on the jury without looking at" her juror questionnaire. Lead counsel explained in his affidavit that he failed to examine Wyatt's questionnaire before trial because he assumed that she would "automatically" be struck because of her status as an assistant district attorney but that they "were confronted with several bad choices when [they] had to make the strikes" at the end of voir dire, and they made the choice to retain her on the jury — again, without first examining her questionnaire. He maintained that had he read Wyatt's questionnaire, he would have exercised one of his peremptory challenges against her because of the "magnitude" of her connections to law enforcement (her father had been a police officer for 33 years, and she had "many, many friends" in law enforcement, according to her questionnaire), and because of the fact (also contained in Wyatt's questionnaire) "that she was repeatedly the victim of numerous crimes (including sex crimes)[.]" Both attorneys said in their affidavits that their failure to strike Wyatt had amounted to ineffective assistance of counsel.
The trial court held a hearing on the motion for new trial. Both of the appellant's trial attorneys testified. Lead counsel testified that he understood the process of preserving a challenge for cause for appeal well and could easily have preserved the denial of his challenge for cause against Wyatt by peremptorily challenging her, exhausting his peremptories, and identifying several jurors whom he found objectionable. He could not explain his failure to peremptorily challenge Wyatt: He assumed his co-counsel had examined Wyatt's questionnaire. He denied that the decision to retain Wyatt on the jury had been a "strategic" one, though he readily admitted on cross-examination that he "did make a decision that day, clearly, to not strike her." "I just — I can't really understand how we left her on the jury." He opined that for any defense counsel to leave "a lawyer for the State" on a criminal jury was "per se, ineffective assistance of counsel."
For her part, co-counsel testified that she had not looked at Wyatt's questionnaire either and had simply deferred to lead counsel's impromptu decision not to exercise a peremptory challenge against her. She also denied that there had been any strategic justification for retaining Wyatt on the jury. Even without having looked at Wyatt's juror questionnaire, co-counsel first asserted, she should have "insisted" that they peremptorily challenge her, and she believed that she had rendered ineffective assistance of counsel in failing to do so. But she conceded on cross-examination that Wyatt's retention on the jury had not been a product of accident or inadvertence, but a conscious choice. And it was in failing to read the questionnaire, she maintained on cross-examination, that they had erred. "My error was that I did not point out to [lead counsel] — because I had not read the [questionnaire], I did not point out to him that we were leaving a person on the panel who had experience with sex offenses."
The State called Judge Sam Medrano, Jr. to the stand.6 Medrano testified that while the jury was deliberating at the guilt phase of the appellant's trial, lead counsel came into his chambers and struck up a conversation, wondering why the jury was deliberating for so long. Medrano replied that "when a prosecutor is the presiding juror, I would assume it's going to take a while before they come back with questions or a verdict[.]" Medrano then testified:
A. He indicated to me that it was a decision on their part to leave [Wyatt] on the jury. There were certain factors that were taken into account. He indicated, and I don't know the name of the juror that he's talking about, but that there was a male juror who was college-educated from Louisiana and was a Republican, and that was a person that they felt they needed to strike more than Robyn Wyatt, and that Ms. Wyatt was a prosecutor that they had dealt with in the office who was as fair a prosecutor as they've ever dealt with, and that they felt comfortable with her being a juror in this case because of their working relationship with her as a prosecutor.
Q. So he told you that he had taken into account the fact that she was a prosecutor and made a decision to leave her on as a juror?
A. Yes.
* * *
A. He indicated that she was one of the few prosecutors that he's dealt with that he considered to be fair-minded.
On cross-examination, Medrano acknowledged that, were he acting in the capacity of a defense lawyer, "the only reason I would leave someone with [Wyatt's] questionnaire on [a criminal jury] is if I had some personal insight into that person that's not included in the questionnaire."
Recalled to the stand, lead counsel admitted that he had made the explanation to Judge Medrano. But he elaborated:
A. I honestly do not know why we did not strike [Wyatt]. I just don't know. I still, to this day — [co-counsel] and I have sat down and talked about it. There were other people we struck instead, including, perhaps, the person that Judge Medrano was mentioning who I cannot even remember now.
But the thing is, is that we did make a decision not to strike her, but I do not believe, between [co-counsel] and I, there was any extended discussion or anything about it. We're just there right in front of the Court, and I think I said to [co-counsel], "Let's strike someone else, this other guy, I guess," and that's what — she said okay and that's what happened.
I think I was less than candid to Judge Medrano because I wasn't testifying and I wasn't — I was just trying to put the best face on it that I could.
After hearing argument, the trial court denied the appellant's motion for new trial without comment.7
For the first time on appeal, the appellant began to argue that the trial court should have granted the challenge for cause against Wyatt because her status as an assistant district attorney rendered her biased as a matter of law and that her inclusion on the jury deprived the appellant of his right to an impartial jury as guaranteed by the Sixth Amendment and Article I, Sections 10 and 15 of the Texas Constitution.8...
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