Webb v. State

• Decision Date: 13 June 2007
• Docket Number: No. PD-0074-06.,PD-0074-06.
• Parties: Samuel Allen WEBB, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

232 S.W.3d 109

Samuel Allen WEBB, Appellant, v. The STATE of Texas.

No. PD-0074-06.

Court of Criminal Appeals of Texas.

June 13, 2007.

Rehearing Denied August 22, 2007.

Stan Brown, Abilene, for Appellant.

Cheryl Nelson, Asst. District Atty., Llano, Matthew Paul, State's Atty., Austin, for State.

OPINION

MEYERS, J., delivered the opinion of the Court, in which KELLER, P.J., and PRICE, WOMACK, KEASLER, HERVEY, and COCHRAN, JJ., joined.

Appellant was convicted of sexual assault of a child. Prior to sentencing, he filed motions for mistrial and new trial, which the trial court denied. Appellant appealed, and the court of appeals affirmed the conviction. Webb v. State, 2005 Tex.App. LEXIS 6231, 2005 WL 1842740 (Tex.App.2005). We granted review to determine whether the court of appeals erred in holding that the trial court did not abuse its discretion by denying Appellant's motions for mistrial and new trial (1) following the discovery that a juror had served on the grand jury that indicted Appellant and (2) because of the State's failure to inform the defense of the possibility that the complaining witness would file a civil suit against Appellant. We agree with the court of appeals that it was not an abuse of discretion for the trial court to deny the motions for mistrial and new trial.

FACTS

Appellant was the campus director of a state-licensed residential facility for emotionally troubled children. The complainant was a resident of the facility. Although Appellant denied that he had engaged in sexual activity with the complainant, he was indicted by the grand jury on November 1, 2001. His trial began almost two years later, on August 25, 2003. During voir dire, defense counsel asked the jury panel if any of the panel members had "heard anyone discuss this case or someone say they thought they knew what the facts of the case might be?" None of the prospective jurors responded. After the jury returned a guilty verdict, but before the sentence was assessed, one of the jurors revealed that she had also served on the grand jury that indicted Appellant. Appellant filed a motion for mistrial and a motion for new trial based in part on the juror's service on both the grand jury and the trial jury.

At a hearing on the motions, the juror testified that all she remembered from the grand jury was Appellant's name and the charges that were filed. She stated that she did not remember if any testimony or written documents were presented to the grand jury. She also did not remember the panel being asked during voir dire whether any of them had ever heard the facts of the case discussed. She stated that she did not know that she could not sit on both the grand jury and the trial jury, and she had not mentioned her service on the grand jury to any of the other jurors during deliberations.

Appellant's motion for mistrial and motion for new trial also alleged that the prosecutor failed to inform him that the complainant might file a civil suit against him. At the hearing on the motions, the prosecutor testified that, prior to the trial she received a phone call from the attorney who was representing the complainant. The attorney mentioned the possibility of filing a suit against Appellant, but the prosecutor asked that the suit not be filed because it would interfere with the criminal trial. Accordingly, complainant's attorney said he would wait to file the civil suit until after Appellant's trial.

The trial court denied the motions for mistrial, finding that although the State had knowledge which probably should have been disclosed to the defense out of an abundance of caution, there was no harm in not informing the defendant of the potential that a suit would be filed. Additionally, the court found that the juror who served on both the grand jury and the trial jury had no actual facts about the case actively in her mind and no harm could have come from her service on both juries.

COURT OF APPEALS

The trial court's decisions in denying the motions for new trial and mistrial were reviewed for abuse of discretion. In a memorandum opinion, the court of appeals overruled Appellant's grounds for review and affirmed the judgment of the trial court. Addressing the prior grand jury service by a juror, the court of appeals held that, because Appellant failed to diligently press the statutory inquiries as to the grounds for challenge, he gave up the right to complain that the juror was disqualified. And Appellant did not show that the juror was biased or prejudiced. Webb v. State, 2005 Tex.App. LEXIS 6231 at *17-19, 2005 WL 1842740, at *4-*6.

The court of appeals also determined that there was no evidence indicating that the State knew that a lawsuit was going to be filed by the complainant, thus the prosecutor did not deliberately withhold impeachment evidence. And, due to abundant additional impeachment evidence, the State's failure to inform the defense that the complainant was considering filing a civil suit did not preclude Appellant from cross-examining and impeaching the complaining witness. Id. 2005 Tex.App. LEXIS 6231 at *25, 2005 WL 1842740, at *9.

ANALYSIS

An appellate court reviews a trial court's ruling on a motion for mistrial and motion for new trial using an abuse-of-discretion standard of review. We view the evidence in the light most favorable to the trial court's ruling and uphold the trial court's ruling if it was within the zone of reasonable disagreement. Wead v. State, 129 S.W.3d 126, 129 (Tex.Crim.App.2004). We do not substitute our judgment for that of the trial court, but rather we decide whether the trial court's decision was arbitrary or unreasonable. Thus, a trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the trial court's ruling. Charles v. State, 146 S.W.3d 204, 208 (Tex.Crim.App.2004).

A. PRIOR GRAND JURY SERVICE BY A JUROR

Appellant argues that the juror's failure to disclose the fact that she served on the grand jury that indicted him denied him his right to a fair and impartial jury. He contends that because the juror did not respond to the general questions he asked the panel regarding knowledge of the case, he did not need to ask more specific questions to preserve his right to challenge the juror. He suggests that the court of appeals' conclusion that he did not ask sufficient questions is incorrect due to the court's reliance on Self v. State, 39 Tex. Crim. 455, 47 S.W. 26 (Tex.Crim.App. 1898), which he argues is misplaced because there were other factors in Self that made the juror's service harmless.

Code of Criminal Procedure Article 35.16(a)(7) says that it is a ground for a challenge for cause if a panelist served on the grand jury which returned the indictment. However, it is not an absolute disqualification. All grounds for challenge for cause may be forfeited. See Article 35.16(a); Article 44.46. Therefore, the challenge for cause is forfeited if not made.¹ Failure to question the jurors on that subject constitutes a forfeiture of the right to complain thereafter. Neither party specifically asked the panel if they had previously served on the grand jury that indicted Appellant. If this fact had been determined and either party had challenged the juror due to her prior service on the grand jury that indicted Appellant, she certainly should have been excused. However, neither party challenged this venirewoman.

In Mitchell v. State, 116 Tex.Crim. 65, 27 S.W.2d 800 (Tex.Crim.App.1930), one of the prospective jurors stated during voir dire that he thought he had been on the grand jury that indicted the appellant. Appellant challenged the venireman, but the court overruled the challenge because the venireman's name was not on the list of grand jurors. The court later determined that the venireman had served on the grand jury and thus the challenge for cause should have been granted. We stated that the appellant's counsel was diligent in discovering the cause upon which he based his challenge, he followed the procedure set forth in the statute, and did everything within his power to prevent the venireman from serving on the jury. Id. at 66, 27 S.W.2d 800. We also stated that a different question would be presented had the appellant failed to diligently press the statutory inquiries as to the ground for challenge, because ordinarily, in the absence of any fraudulent purpose upon the part of the juror, or any injury to the defendant, the failure to question the venire regarding service on the grand jury that returned the indictment constitutes a forfeiture of the right to thereafter complain. Id. at 67, 27 S.W.2d 800. Therefore, it is not required that a juror who served on the grand jury be discharged. Prior service on the grand jury raises a question of implied bias, which may be challenged or forfeited. Id. In Mitchell, the defense timely and properly raised the question of implied bias of the juror arising from service on the grand jury that returned the indictment; he did not forfeit the question, but exercised his statutory right by challenging the venireman. Id. In contrast, Appellant did not ask specific enough questions to determine whether anyone on the panel had served on the grand jury that indicted him and he did not challenge the venirewoman. Therefore, he forfeited the right to complain that the juror should have been excused.

Appellant argues that the better view is that when there is no response to the general question about familiarity about the case, then there is no need to ask more specific questions in order to preserve the error. We disagree. It is incumbent upon counsel to specifically ask questions which will determine whether they have a right to challenge the veniremember. The jury panel does not know the statutory challenges for cause and thus the prospective jurors likely do not know what the parties are trying to determine during voir dire. It is counsel's responsibility to...