Whatley v. State

• Decision Date: 26 February 2014
• Docket Number: No. 06–12–00117–CR.,06–12–00117–CR.
• Citation: 415 S.W.3d 530
• Parties: Jerry Don WHATLEY, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

415 S.W.3d 530

Jerry Don WHATLEY, Appellant

v.The STATE of Texas, Appellee.

No. 06–12–00117–CR.

Court of Appeals of Texas, Texarkana.

Submitted July 31, 2013.

Decided Oct. 16, 2013.

Discretionary Review Granted Feb. 26, 2014.

Steven R. Green, Head & Green, Attorneys at Law, Athens, for Appellant.

Chris B. Martin, Dist. Atty., Richard A. Schmidt, Asst. Dist. Atty., Canton, for Appellee.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Justice CARTER.

I. Introduction

Jerry Don Whatley was convicted by a Van Zandt County jury ¹ of aggravated sexual assault of a child by touching.² The jury assessed his punishment at fifty years' imprisonment. The trial court also assessed $573.00 in court costs and $3,249.00 in attorney's fees against him. Whatley contends that his conviction should be reversed because a juror did not reveal material information at voir dire. He further contends that the evidence is insufficient to support his conviction. Whatley claims that there is no evidence that he had any intention to commit the accused acts; rather, he alleges the only evidence was that he was asleep at the time and, therefore, did not commit any act intentionally, knowingly, or voluntarily. Finally, he contends that the evidence is insufficient to support the trial court's assessment of court costs and attorney's fees.

II. Voir Dire—Failure to Reveal Material Information

During voir dire, defense counsel asked whether anyone on the panel knew the victim's mother by either her married name, Diane Whatley, or her maiden name, Diane Stringer. Two panelists acknowledged knowing her. The next day, after having been selected for and seated on the jury, a third individual, Karen Asher, told the court that she also knew the victim's mother by her maiden name, Diane Stringer. Asher's explanation for not disclosing the information the previous day when asked by defense counsel was that she misunderstood the name. Asher stated, “I heard Springer.” Asher then informed the court that she and Stringer were in school together about thirty years ago, that they had played basketball together, and that she had seen Stringer in passing a few times over the last ten years. Asher said that she had last spoken with Stringer “between eight and ten years ago.”

Defense counsel was allowed to question Asher. The evidence showed that even though Asher knew Stringer when they were in high school, she did not know the daughter-victim, did not know Whatley, and did not know that Stringer was married to Whatley. Further, Asher had no mutual friends with Stringer. She stated that she had taken Benadryl for a skin condition the day before and then agreed with counsel's suggestion that it might have affected her hearing and her cognitive abilities.

A discussion ensued with questioning by both parties and the trial court concerning any impact that Asher's prior association with the victim's mother, who was to be a witness, would have on her ability to fairly decide the case. Asher characterized her relationship with Diane Stringer Whatley as extremely attenuated and stated categorically that she could fairly consider the testimony. Asher also noted that she had not taken Benadryl on the day of trial; consequently, any problems it might have caused for her during the jury selection process would not be relevant to the day of trial.

Whatley was given the option by the trial court of proceeding with only eleven jurors; he declined, sought to strike Asher, and moved to have the case “reset.” The trial court denied Whatley's request to remove Asher from the jury and overruled his motion for a mistrial.

The parties cite to Franklin v. State, 986 S.W.2d 349 (Tex.App.-Texarkana 1999), rev'd,12 S.W.3d 473 (Tex.Crim.App.2000), as the controlling law on this issue. In Franklin, a juror failed to disclose during voir dire questioning that she knew the victim in the case. When the victim was called to testify, the juror recognized her and immediately informed the trial court of her prior relationship with the victim. In response, the trial court asked the juror if she could base her judgment in the case solely on the evidence presented at trial rather than her prior relationship with the victim. Id. at 476. The trial court, however, refused to allow counsel to question the juror. Id. at 477.

As pointed out by the Texas Court of Criminal Appeals in Franklin, the fact that the misleading information was not intentionally withheld is irrelevant when considering its materiality. Even though the Texas Court of Criminal Appeals recognized that mere familiarity with a witness is not necessarily material, it deemed the trial court's denial of Franklin's request to question the juror error and remanded to this Court for a harm analysis. ³ On remand, we recognized that the trial court's error was of constitutional dimension. SeeTex.R.App. P. 44.2(a).

Based on the absence of any evidence in Franklin relevant to the harm inquiry—due to the trial court's refusal to allow questioning of the juror by defense counsel—we concluded that the error could not be shown to be harmless beyond a reasonable doubt and reversed the judgment. Franklin v. State, 23 S.W.3d 81, 83 (Tex.App.-Texarkana 2000), aff'd,138 S.W.3d 351. As explained by the Texas Court of Criminal Appeals, it is “not necessary that the concealed information show actual bias; just that it has a tendency to show bias, thus implicating his constitutional right to trial by an impartial jury.” Franklin, 138 S.W.3d at 356.

Franklin is distinguishable from this case in several respects. In Franklin, the child-victim and the juror's daughter were in the same Girl Scout troop, and the juror was the assistant troop leader for that troop. This type of relationship has been described as “almost a parental role.” Brown v. State, 183 S.W.3d 728, 740 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd). Defense counsel in Franklin requested an opportunity to further develop the nature of the relationship between the victim and the juror but was denied such right by the trial court; in contrast, defense counsel in this case was allowed to fully develop such information. In Franklin, the defense counsel stated that had he known of this relationship, he would have exercised a peremptory challenge on the juror.

In the instant case, counsel questioned the juror in some detail. The claimed error is in the failure to grant a new trial because the information elicited had a tendency to show bias. In determining whether the trial court erred in failing to grant a mistrial ⁴ or a new trial, we must determine if the withheld information was material. If material information is withheld, it is constitutional error to deny a motion for mistrial because it denies the parties the opportunity to exercise their challenges, hampering the selection of a disinterested and impartial jury. Franklin, 138 S.W.3d at 353–54. Mere familiarity with a witness is not necessarily material information. Franklin, 12 S.W.3d at 478. The Texas Court of Criminal Appeals has held that in order to be material, the withheld information must be of a type that shows the relationship had a potential for prejudice or bias of the juror. Decker v. State, 717 S.W.2d 903, 907 (Tex.Crim.App.1983) (withheld fact that juror worked with complaining witness not material given lack of evidence of socialization or friendship); Lopez v. State, 261 S.W.3d 103 (Tex.App.-San Antonio 2008, pet. ref'd) (withheld facts that witness was friend of juror's girlfriend's stepfather and that juror had seen witness at social gathering deemed immaterial when juror, after equivocating, stated he would be fair; not material because facts failed to show potential for bias or prejudice); Brown, 183 S.W.3d at 740 (juror's knowledge of police officer witness through Christian retreat deemed immaterial in absence of evidence of friendship and/or socialization); Whiting v. State, 943 S.W.2d 102, 105 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd) (fact that witness and juror lived in same apartment unit and had met in parking lot not material).

Here, after questioning by the State and defense attorney, the nature of the relationship of the juror and witness was revealed. Since there was a thirty-year lapse between the juror and mother attending school together and the present date with little interaction during that entire time period, there is no indication of potential prejudice or bias of the juror. Further, the juror did not know either the defendant or the victim and stated that she would be able to make her decision solely on the evidence. We find that the withheld ⁵ information was not material and that Whatley was not deprived of an impartial jury.

Accordingly, we conclude no error was committed.

III. Sufficiency of the Evidence

Whatley contends that the evidence is insufficient to support his conviction. Generally, the question in such a case is whether the defendant has committed the act. Here, that is not an issue—there is direct evidence that Whatley inappropriately touched the child. But this is not the typical case. The question before us here is whether, in light of the unwavering testimony of the victim that Whatley was asleep each time he touched her, there is any evidence that he did so with the requisite mens rea, or whether he did so voluntarily. SeeTex. Penal Code Ann. §§ 6.01(a), 6.02 (West 2011).⁶A. The Evidence

The State's evidence included testimony of the victim's mother recounting the outcry of the then eleven-year-old victim—that “dad” touched her, but was asleep—and described a family discussion that occurred immediately thereafter. The State also introduced a “voluntary statement” provided by the victim's mother, which was read to the jury.

Evidence from the victim came in through different means. She was eighteen years old when she testified at trial. The State also introduced a video-recorded interview of the victim conducted by the Smith County Child...