State v. Read, 03-97-00186-CR
| Court | Court of Appeals of Texas |
| Citation | 965 S.W.2d 74 |
| Docket Number | No. 03-97-00186-CR,03-97-00186-CR |
| Parties | The STATE of Texas, Appellant, v. Dean Robert READ, Jr., Appellee. |
| Decision Date | 12 March 1998 |
Page 74
v.
Dean Robert READ, Jr., Appellee.
Austin.
Page 75
Marcos Hernandez, Jr., Criminal District Attorney, Wes H. Mau, Assistant Criminal District Attorney, San Marcos, for Appellant.
Keith S. Hampton, Austin, for Appellee.
Before POWERS, ABOUSSIE and B.A. SMITH, JJ.
POWERS, Justice.
A jury found appellee Dean Robert Read guilty of driving while intoxicated, second offense, a class A misdemeanor. See Tex. Penal Code Ann. §§ 49.04(a), .09(a) (West Supp.1998). The court assessed punishment at confinement in the Hays County Jail for
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one year, probated for two years, and a $750.00 fine. Read's motion for new trial was heard and granted. The State appeals the order granting a new trial. See Tex.Code Crim. Proc. Ann. art. 44.01(a)(3) (West Supp.1998). We will affirm the order.After trial and sentencing, Read discovered that a juror had not disclosed information about her criminal history even though the trial court asked for this information at voir dire and on the jury questionnaire. At voir dire the trial court stated the qualifications for jurors, including the following:
[Y]ou must not have been convicted of theft or any felony and you must not be under indictment or other legal accusations for theft or any felony.
If any person is disqualified for any of the reasons I just set out, please approach the bench and I will decide whether or not that disqualification can be waived.
The juror made no response to the trial court's directive. On the jury card this question was asked: "Have you ever been an accused, complainant or witness in a criminal case?" The juror checked the "No" box, and signed the card. After trial and sentencing, but within the time permitted for a motion for new trial, Read discovered that this juror had been convicted of misdemeanor theft in Travis County Court at Law Number 2 in 1974, and fined $50.00. A conviction of theft constitutes an absolute disqualification from jury service and a person who has been so convicted may not be impaneled as a juror even though both parties may consent to it. Tex.Code Crim. Proc. Ann. arts. 35.16(a), 35.19 (West 1989); see Frame v. State, 615 S.W.2d 766, 769 (Tex.Crim.App.1981) (conviction for misdemeanor theft is sufficient to constitute absolute disqualification).
In addition to the misdemeanor-theft conviction, the juror also failed to disclose several other instances when she had been an accused in a criminal case. She was found guilty of misdemeanor theft on her plea of nolo contendere in a case in Travis County in 1980, and placed on probation. She completed probation and the case was dismissed in 1981. She was indicted for the felony offense of aggravated assault with a deadly weapon, alleged to have occurred in April 1987 in Hays County. This aggravated assault case was dismissed in district court in February 1988. She was charged with the misdemeanor of interference with the lawful duties of a public servant, alleged to have occurred in Hays County in August 1990. This case was dismissed in the County Court at Law Number 2 of Hays County in September 1991. The last accusation against this juror was an information alleging misdemeanor assault with bodily injury in Hays County in August 1994. The assault charge was dismissed in February 1995, in County Court at Law Number 2 of Hays County. The voir dire proceeding at which the juror failed to disclose the information requested was on November 4, 1996, in the same court where the juror's last two cases had been dismissed.
Appellee made his timely motion for new trial and the trial court held a hearing on that motion. Evidence of the juror's criminal history set out above was introduced at the hearing, as was the juror questionnaire. The trial court granted appellee's motion for new trial. No findings or reasons were given for granting the motion. The Rules provide: "In ruling on a motion for new trial, the court must not summarize, discuss, or comment on evidence."...
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