Wamsley v. State, No. 2-06-089-CR (Tex. App. 3/13/2008)

• Decision Date: 13 March 2008
• Docket Number: No. 2-06-089-CR.,2-06-089-CR.
• Citation: Wamsley v. State, No. 2-06-089-CR (Tex. App. 3/13/2008), No. 2-06-089-CR. (Tex. App. Mar 13, 2008)
• Parties: ANDREW WAMSLEY, Appellant, v. THE STATE OF TEXAS, State.
• Court: Texas Court of Appeals

Page 1

Unpublished Opinion

ANDREW WAMSLEY, Appellant, v.THE STATE OF TEXAS, State.

No. 2-06-089-CR.

Court of Appeals of Texas, Second District, Fort Worth.

Delivered: March 13, 2008.

Do Not Publish. Tex.R.App.P. 47.2(b)

Appeal from the 297th District Court of Tarrant County.

Panel B: LIVINGSTON, WALKER, and McCOY, JJ.LIVINGSTON, J. concurs without opinion.

MEMORANDUM OPINION¹

BOB McCOY, Justice.

I.Introduction

In twelve points, AppellantAndrew Wamsley appeals his conviction of capital murder.We affirm.

II.Factual and Procedural History

On December 11, 2003, Mansfield police were dispatched to the house of Rick and Suzanna Wamsley in response to a 911 call.Upon their arrival, the police discovered Rick and Suzanna dead inside their home.After a sweep of the house, the police found no signs of forced entry.The police determined that Rick died as a result of multiple gunshot wounds and stab wounds to his head and chest, while Suzanna died as a result of a single gunshot wound to her head and multiple stab wounds to her chest.

The Wamsleys' son, Appellant, was charged with capital murder.The State's principal witness, Susana Toledano, testified that she, Appellant, and Chelsea Richardson murdered the Wamsleys on the morning of December 11.Toledano provided the State with a sample of her DNA, which matched evidence found at the murder scene.Toledano agreed to testify against Appellant in exchange for a life sentence for the lesser offense of murder.Toledano testified that Appellant murdered his parents because he wanted the money from a million dollar life insurance policy covering Rick.

Appellant pleaded not guilty; however, the jury found Appellant guilty as charged in the indictment.The State sought the death penalty, but the jury returned a "no" answer to the future dangerousness special issue.Thus, the trial court imposed punishment of life imprisonment.Appellant brought this appeal.

III.Challenge to Venire Panel

In Appellant's first point, he contends that the trial court erred by preventing a veniremember from exercising a juror exemption.In Appellant's second and third points, he asserts that he was deprived the intelligent use of his peremptory and cause challenges when the trial court refused to allow him the opportunity to question two veniremembers regarding changes in their circumstances.

A.Applicable Facts

Voir dire began on January 12, 2006.Appellant challenged juror thirty-one, Joseph McCrary, for cause based on his views about the punishment range for the lesser included offense of murder, as well as his response to special issue two dealing with the death penalty.The trial court denied the challenge for cause.Appellant next challenged juror thirty-two, Linda Zimmerman, for cause based on her response to special issue two.The trial court denied this challenge as well.

On February 17, 2006, Appellant filed a motion for additional peremptory challenges.The motion asserted that because the trial court had denied Appellant's challenges for cause against certain veniremembers on January 12, Appellant would now have to exercise peremptory strikes against them.Within the motion was a list of the veniremembers against whom Appellant intended to exercise peremptory strikes against; both Joseph McCrary and Linda Zimmerman were included.

That same day, those veniremembers who had not been excused or successfully challenged for cause on January 12 were reassembled so that the State and defense might exercise peremptory challenges.At this time, the trial court notified the parties that two jurors had contacted the bailiff to inform the court of changes in their circumstances that had occurred subsequent to their qualification and that may affect their ability to serve.Juror thirty-one, McCrary, informed the bailiff that he had recently enrolled in a college course and would like to claim a student exemption, while juror thirty-two, Zimmerman, notified the bailiff that her mother had suffered serious health complications the previous weekend and that her death was imminent.

Appellant requested the opportunity to question both veniremembers on the issues they raised to determine whether their changes in circumstances would permit the trial court to excuse them under article 35.03 of the Texas Code of Criminal Procedure, or would otherwise impact their ability to hear the case.TEX. CODE CRIM. PROC. ANN. art. 35.03(Vernon Supp. 2007).The trial court refused Appellant's request to question the venire members and also refused to excuse McCrary, stating that it was too late for him to claim a student exemption.Appellant objected, asserting that a juror could claim an exemption up until the time the jury is empaneled.Appellant then challenged veniremember Zimmerman for cause for a second time, and once again the trial court denied the challenge.Subsequently, Appellant's defense counsel used peremptory strikes to exclude both McCrary and Zimmerman from the jury.Appellant requested an additional peremptory challenge to be used on the next juror considered; the court granted the request as to this specific juror, but denied all of Appellant's further requests for additional peremptory challenges.

B.Trial Court's Refusal to Excuse Juror Number 31

In Appellant's first point, he argues that the trial court erred by preventing veniremember McCrary from exercising his student exemption.

Texas Code of Criminal Procedure article 35.03 gives a trial court broad discretion to excuse prospective jurors for good reason.²TEX. CODE CRIM. PROC. ANN. art. 35.03;Crutsinger v. State,206 S.W.3d 607, 608(Tex. Crim. App.2006).Under article 35.03, "the court shall . . . hear and determine excuses offered for not serving as a juror, and if the court deems the excuse sufficient, the court shall discharge the juror or postpone the juror's service."TEX. CODE CRIM. PROC. ANN. art. 35.03.Under section 62.106(1)(a)(3) of the Texas Government Code, a person may establish an exemption from jury service if the person is enrolled and in actual attendance at an institution of higher education.TEX. GOV'T CODE ANN. § 62.106(1)(a)(3)(Vernon 2005).This is a personal, optional exemption from jury service, which may be invoked by a venireperson.Burks v. State,876 S.W.2d 877, 891(Tex. Crim. App.1994).It does not provide for a statutory exclusion or mandatory disqualification.Id.A trial court retains the authority to excuse a venireperson up until the time the entire jury has been empaneled and sworn.SeeRousseau v. State,855 S.W.2d 666, 676-77(Tex. Crim. App.1993)(holding that when a veniremember who had already been questioned and qualified to serve subsequently advised the court that she wished to claim a childcare exemption, the court retained authority under article 35.03 to dismiss her from jury service).

The trial court abuses its discretion when it arbitrarily or unreasonably excuses a juror, without reference to any guiding rules and principles.SeeMontgomery v. State,810 S.W.2d 372, 380(Tex. Crim. App.1990);Gregg v. State,881 S.W.2d 946, 950-51(Tex. App.-Corpus Christi1994, pet. ref'd).Under an abuse of discretion standard, an appellate court may reverse a trial court's decision only when it appears that the court applied an erroneous legal standard, or when no reasonable view of the record could support the trial court's conclusion under the correct law and the facts viewed in the light most favorable to its legal conclusion.SeeDuBose v. State,915 S.W.2d 493, 497-98(Tex. Crim. App.1996).Even if the appellate court would have reached a different result, it should not intercede as long as the trial court's ruling was within the "zone of reasonable disagreement."Montgomery,810 S.W.2d at 391.

Appellant contends that the trial court erred by denying McCrary of his absolute right to exercise his student exemption.We disagree.Although an exemption is both personal and optional as to the venireperson, the juror has no absolute right to the exemption as it is neither a statutory exclusion nor a mandatory disqualification.Burks,876 S.W.2d at 891.Although the trial court could have excused McCrary, it was not required to do so.³Thus, Appellant's assertion that McCrary had an absolute right to claim his exemption is simply unfounded.

Furthermore, excuses are considered on a case-by-case basis and are within the broad discretion of the court.Jasper v. State,61 S.W.3d 413, 424(Tex. Crim. App.2001).Here, the record shows that McCrary was not a student at the time of individual voir dire, but only later chose to enroll in college courses.By this point, McCrary had already been questioned at length and had been qualified to sit on the jury of a capital murder case.Nothing in the record indicated that McCrary was unfit to serve for any purpose.Based on the preceding facts and the trial court's interest in assuring that a sufficient panel existed from which to choose a jury, it was well within the trial court's discretion to reject McCrary's request to be excused from further proceedings.

Therefore, we conclude that the trial court did not abuse its discretion in refusing to allow McCrary to claim a student exemption.SeeMontgomery,810 S.W.3d at 380.Accordingly, we overrule Appellant's first point.

C.Alleged Denial of Intelligent Use of Peremptory Strikes and Challenges for Cause

In Appellant's second and third points, he contends that because the trial court erroneously denied his request to question veniremembers McCrary and Zimmerman about changes in their circumstances that occurred after they had been qualified to serve, he was unable to intelligently exercise his peremptory strikes and challenges for cause.

1.Applicable Law

The Sixth Amendment guarantees the assistance of counsel and the right to a trial before an impartial jury.Franklin v. State,138 S.W.3d 351, 354(Tex. Crim. App.2004).Part of the constitutional guarantee of the right to...