Opinion
NUMBER 13-16-00488-CR
02-08-2018
ROGER VENNARD, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the County Court at Law of Aransas County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Longoria, and Hinojosa
Memorandum Opinion by Justice Hinojosa
Appellant Roger Vennard appeals his conviction for assault causing bodily injury, a Class A misdemeanor. See TEX. PENAL CODE ANN. § 22.01 (West, Westlaw through 2017 1st C.S.). A jury found appellant guilty. The trial court assessed punishment of 365 days' confinement in the county jail but suspended the sentence and placed appellant on community supervision for twelve months. By one issue, appellant argues he was entitled to a mistrial because a juror withheld material information during voir dire. We affirm.
I. BACKGROUND
Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4.
Appellant was charged by information with causing bodily injury to his wife Denise Vennard in violation of section 22.01 of the penal code. See id. During jury selection, the State asked whether any of the panel members or their acquaintances had been a victim of domestic violence. Several venirepersons responded affirmatively. After a six-person jury was selected and empaneled, the trial court recessed the proceedings for lunch. During the break, one of the selected jurors communicated to court staff that she needed to share something with the trial court. When proceedings resumed, the trial court held a hearing outside the presence of the jury, and the following testimony was adduced:
TRIAL COURT: You are one of the jurors seated in this case?
JUROR: Yes.
TRIAL COURT: The bailiff has informed us there was some kind of problem you were having.
JUROR: I have a niece who was a victim of domestic violence. But I thought about it myself. I can just put it out. I have no problem.
TRIAL COURT: You can base your verdict in this case on the testimony that you hear and on the credibility of the witnesses. That would be your sole concern. You can put that situation out of your mind?
JUROR: Yes.
TRIAL COURT: Anything from the lawyers?
APPELLANT'S COUNSEL: Yes. . . . [I]f you had said that and I knew about it, I probably would have asked you to come up here in front of the judge. And I'm going to go back in time. If I had brought you up here, if I had asked you whether or not that would affect your verdict in this case or you could be fair and impartial to the Defendant, what would you have said?
JUROR: I don't know.
APPELLANT'S COUNSEL: You don't know? You heard the prosecutor ask you about domestic violence.
JUROR: I didn't really remember at the time. I remembered when I was going to my car about the domestic violence.
APPELLANT'S COUNSEL: Even now you're telling me you don't know what you would have said? You don't know if it would affect your verdict?
JUROR: No, it won't affect.
APPELLANT'S COUNSEL: That's what you just said. It would not. Okay. You know how important this is. Right?
JUROR: Yes.
. . . .
TRIAL COURT: Go ahead and have a seat in the jury room.
APPELLANT'S COUNSEL: Your Honor, if I had known what she just said, I would have brought her up here and asked her questions. I thought when I asked her now on the record, she said I don't know what I would have said. And then about two minutes later, now she says she would have said it wouldn't
have made any difference. All that having been said, I move to have another jury panel.
TRIAL COURT: Your motion will be denied.
The case proceeded to trial, the jury returned a guilty verdict, and the trial court assessed punishment. This appeal followed.
II. DISCUSSION
By his sole issue, appellant argues that the trial court erred in denying his "request that he be given a new jury panel[.]" A defendant's request for a new jury panel after the jury has been sworn is functionally equivalent to a motion for mistrial. See Moss v. State, 877 S.W.2d 895, 898 (Tex. App.—Waco 1994, no pet.) (construing a request to dismiss the array after the jury was impaneled as equivalent to a motion for mistrial); see also Alvarez v. State, 804 S.W.2d 617, 619 (Tex. App.—El Paso 1991) (noting that the difference between a motion to quash an array and a motion for mistrial were "purely semantic"), aff'd, 864 S.W.2d 64 (Tex. Crim. App. 1993). Therefore, we will review the trial court's ruling as a denial of a motion for mistrial.
A. Standard of Review and Applicable Law
We review a trial court's ruling on a motion for mistrial under an abuse-of-discretion standard of review. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). We view the evidence in the light most favorable to the trial court's ruling, and we will uphold the ruling if it was within the zone of reasonable disagreement. Id. 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. Id. A trial court abuses its discretion in denying a motion for mistrial only when no reasonable view of the record could support its ruling. Id. When the court does not issue findings of fact, we will imply findings necessary to support the ruling if they are reasonable and supported by the record. Johnson v. State, 169 S.W.3d 223, 239 (Tex. Crim. App. 2005).
Both the Sixth Amendment to the United States Constitution and article I, section 10 of the Texas Constitution provide criminal defendants the right to a trial by an impartial jury. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10. "When a juror withholds material information during voir dire that the defense, using due diligence, could not uncover, the parties are denied the opportunity to exercise their challenges, which hinders their selection of an impartial jury." State v. Gutierrez, ___ S.W.3d ___, ___, No. PD-0197-16, 2017 WL 4675344, at *5 (Tex. Crim. App. Oct. 18, 2017). Information is "withheld" only if counsel is diligent in asking questions calculated to bring out that information. Gonzales v. State, 3 S.W.3d 915, 916-17 (Tex. Crim. App. 1999). To demonstrate materiality, the defendant must demonstrate that the information "has a tendency to show bias." Franklin v. State, 138 S.W.3d 351, 356 (Tex. Crim. App. 2004). A juror is biased when an inclination toward one side of an issue rather than to the other leads to the natural inference that the juror will not act with impartiality. Anderson v. State, 633 S.W.2d 851, 853 (Tex. Crim. App. [Panel Op.] 1982). When deciding whether the withheld information is material, a juror's good faith is largely irrelevant. Gutierrez, 2017 WL 4675344, at *6.
The protection under the Texas Constitution is virtually identical to that offered by the Federal Constitution. Jones v. State, 982 S.W.2d 386, 391 (Tex. Crim. App. 1998).
If the withheld information has a tendency to show bias, the trial court should hold a hearing and receive evidence regarding whether the juror is actually biased. Id. (citing Uranga v. State, 330 S.W.3d 301, 306 (Tex. Crim. App. 2010)). Whether a juror is actually biased is a fact issue to be resolved by the trial court, and we give almost total deference to the trial court's determination if it is supported by the record. Id.; Uranga, 330 S.W.3d at 306. If the trial court finds that the juror is not actually biased, and that finding is supported by the record, then the defendant is not entitled to a mistrial. See Gutierrez, 2017 WL 4675344, at *6 (noting that a defendant cannot establish harm from a juror's non-disclosure of information when the trial court's finding that the juror is not actually biased is supported by the record); Uranga, 330 S.W.3d at 306 (explaining that a trial court does not abuse its discretion in denying a motion for mistrial when its factual finding concerning a juror's actual bias is supported by the record). If, however, the trial court finds that the juror is actually biased, the only remedy is a mistrial. Gutierrez, 2017 WL 4675344, at *6.
B. Analysis
Appellant maintains that he was entitled to a mistrial because a juror withheld material information during voir dire. The State responds that the record supports the trial court's implicit finding that the juror was not actually biased. We agree with the State.
The trial court in this case conducted a hearing so that the juror could be questioned by the parties concerning actual bias. See id. (approving the trial court's practice of holding a hearing to determine actual bias when withheld information has a tendency to show bias). The juror testified that her niece was a victim of domestic violence, but that she did not remember this fact until after voir dire was completed. Nevertheless the juror stated, "I can just put it out. I have no problem." When asked by appellant what she would have said had she been asked about the issue during voir dire, she responded, "I don't know." Appellant then asked her more pointedly whether her niece's experience would affect her verdict, and she responded, "No, it won't affect."
In denying appellant's motion for a mistrial, the trial court implicitly found that the juror was not actually biased. See Johnson, 169 S.W.3d at 239. "When a juror vacillates, a reviewing court's deference to the trial court's finding is at its apex because the finding hinges on credibility and demeanor evaluations, to which we are not privy on a cold record." Gutierrez, 2017 WL 4675344, at *8 (finding case law concerning challenges to a veniremember instructive in cases dealing with a sworn jury). With this in mind, and in light of the juror's assurance that her niece's experience would not affect her impartiality, we conclude that the trial court's implicit finding that the juror was not actually biased is supported by the record. See id. (concluding that the trial court would not have erred in denying a motion for mistrial where juror did not disclose that he was acquainted with a witness and vacillated whether it would affect his ability to be impartial); Johnson, 169 S.W.3d at 239. Accordingly, we hold that the trial court did not abuse its discretion in denying appellant's motion for a mistrial. See Webb, 232 S.W.3d at 112. We overrule appellant's sole issue.
III. CONCLUSION
We affirm the trial court's judgment.
LETICIA HINOJOSA
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 8th day of February, 2018.