SUE LAGARDE, JUSTICE, ASSIGNED.
Appellant Jimmie Lee Williams pleaded not guilty before a jury to the felony offense of burglary of a habitation. After the jury found appellant guilty of the primary offense, appellant pleaded not true to the enhancement allegations. The jury found the allegations to be true and assessed appellant's punishment at life imprisonment in the Institutional Division of the Texas Department of Criminal Justice. Appellant appeals the judgment of conviction, presenting only one issue: whether juror number 46, Patrick Burks, should have been excused for cause after Burks revealed he had been a victim of a crime similar to the one for which appellant was being tried "and was therefore biased against appellant." Concluding no abuse of discretion has been shown, we affirm. At the conclusion of voir dire, respective peremptory strikes were made. After the remaining jurors were seated, the trial judge gave them certain admonishments. At the end of the trial judge's remarks, Burks asked to speak to the trial judge. The judge agreed to speak with Burks in the presence of the prosecutor and defense counsel. The following then occurred:
JUROR: My question is not really a question. It's about the case. I was a victim of something very similar to this here or the case.
THE COURT: But you didn't tell us that it would cause a problem for you.
JUROR: Well, I left it blank because I didn't know all the specifics and it would be any, you know —
THE COURT: So you're going to tell me that we're going to have wasted everybody's time today because you can't set aside a personal issue?
JUROR: Well, if you read it that way, I mean, sure.
On appeal, based on Burks's response set out above, appellant contends Burks "clearly without any ambiguity whatsoever, stated that he could not set aside his personal issue (considering he was the victim of the same kind of offense, this isn't uncommon or unreasonable)." Appellant argues Burks "demonstrated bias as a matter of law, and hence the juror should have been struck and not subject to rehabilitation by the State." Appellant further argues such error was harmful because appellant was entitled to have unbiased jurors. The State responds the trial court properly denied appellant's challenge for cause because appellant failed to establish Burks was biased as a matter of law. Thus, the State argues, viewing the entire voir dire record, no abuse of discretion is shown.
The Entire Voir Dire Record Following the comments set out above, the record reflects the following occurred:
THE STATE: Can I ask him a couple of questions?
THE COURT: Yes.
THE PROSECUTOR: Sir, your experience that you're talking about, your house was burglarized?
JUROR: Yes.
THE PROSECUTOR: Okay. Did they ever catch the person that burglarized it?
JUROR: Yes.
PROSECUTOR: It wasn't this defendant who burglarized your home; is that correct?
JUROR: No.
PROSECUTOR: As far as you know it wasn't an associate of his or anyone who would have known him?
JUROR: No.
PROSECUTOR: And — and you realize that probably, unfortunately, a large proportion of people in the county's homes have been burglarized, so what — what the law says is — we're just asking ask you to judge this case based on the facts of this case alone. You're not going to find this defendant guilty because somebody else broke into your home; is that correct?
JUROR: No.
PROSECUTOR: Okay. So you can judge this case based on the facts of this case and this case alone?
JUROR: Sure.
DEFENSE COUNSEL: May I ask a few questions?
THE COURT: Be very careful.
DEFENSE COUNSEL: Mr. Burks?
JUROR: Uh-huh.
DEFENSE COUNSEL: You filled out a questionnaire in this case, and you had — had been given several opportunities to change your answers on the questionnaires or to expand on your answers on the questionnaire, and you did not; is that correct?
JUROR: I didn't hear expand. Changes — and I would change it.
DEFENSE COUNSEL: Okay. On your questionnaire, you did not state whether this experience would cause you not to be fair to both sides in this case. Had you had to answer that question, what would your answer have been?
JUROR: I'm sorry, say that again.
DEFENSE COUNSEL: On the questionnaire, you had — did not — not check yes or no when we said would this experience cause you not to be fair to both sides in this case.
JUROR: Right. And as it turns out, it's very similar to what I experienced.
DEFENSE COUNSEL: Okay.
THE COURT: Well, how do you know that? You haven't even heard any facts yet. This is not a robbery case, okay?
JUROR: It's a break — whether I walked in on the crime or not —
THE COURT: No, you just need to answer the questions that are asked of you.
JUROR: All right. Okay.
DEFENSE COUNSEL: So, Mr. Burks, had you answered the question, would this experience cause you not to be fair to both sides in this case? Would you have answered yes or no.
JUROR: No.
DEFENSE COUNSEL: No, you would not be able to be fair?
JUROR: Yeah, I — yeah, I'll be fair.
DEFENSE COUNSEL: Do you feel —
THE COURT: All right. That's enough. All right. We'll see you tomorrow morning. Don't be late at 9:30, please.
THE COURT: He answered no.
DEFENSE COUNSEL: May I go on the record objecting to juror number 46 — I mean, yeah, juror number 46.
THE COURT: All right.
DEFENSE COUNSEL: Your Honor, at this time based upon the representations of Mr. Burks. We would ask that he be stricken and be replaced with juror number 60, Ms. Wilburn. The jury has not been sworn yet. I think it would be — he has indicated that he suffered something similar to what the facts of the case are in this case, and I don't think that he would be able to give Mr. Williams a fair trial?
THE COURT: Ms. Bennett?
PROSECUTOR: Well, Your Honor, he stated clearly that he would be able to give the defendant a fair trial. That he — but he wouldn't judge this defendant based on something that someone else did. And that — that he could judge this case on the facts of this case and this case alone and juror number 60 wasn't within the strike zone, so that wasn't even a juror that was considered.
DEFENSE COUNSEL: However, he did feel strongly enough about this to come forward and state before the jury was sworn that he does have a potential bias in this case.
THE COURT: Well, that's not at all what he said. And first of all, he doesn't know anything about the jury being sworn. And — and the Court observed his demeanor and his mannerisms and [the prosecutor] asked him very specific questions that follow the case law, and he was able to answer every one of those. And in fact, with [defense counsel's] questions, he answered — if he had answered the question yes or no, he would have answered it no. That's why he stands, is that, because that ends it. That means he would have said it would not have been a problem for him to be fair in this case.
Appellate Arguments Appellant argues that based on the record set out above Burks was biased as a matter of law; therefore, the trial court was required to excuse him even if he stated he could set aside his bias and provide a fair trial.
See Williams v. State, 565 S.W.2d 63, 65 (Tex.Crim.App. 1978). Appellant does not argue Burks was not rehabilitated — he argues only that such rehabilitation was erroneously permitted, and that Burks should have been excused for cause because he was biased as a matter of law. Appellant relies heavily on
Anderson v. State, 633 S.W.2d 851 (Tex.Crim.App. 1982) and
Green v. State, 840 S.W.2d 394 (Tex.Crim.App. 1992). Distilled, appellant's argument is that if a challenged prospective juror is biased as a matter of law, the juror must be struck and cannot be rehabilitated; and bias as a matter of law exists when the prospective juror admits he is biased for or against the defendant.
Anderson, 633 S.W.2d at 854. Hence, being biased as a matter of law, appellant argues, Burks should have been struck and not subject to rehabilitation by the State. Appellant further argues the trial judge abused her discretion by intervening in jury selection by assisting in qualifying and rehabilitating a venire member who had previously stated his bias, and that her comments were reasonably calculated to benefit the State. Appellant specifically points to the trial judge's comments about having wasted everybody's time by not being able to set aside a personal issue as "exerting pressure" upon, or "strong-arming" Burks. Appellant argues the court's comments "allowed the State to erroneously rehabilitate [Burks] and thus were a benefit solely to the State, and a detriment solely to Appellant." The State responds that Burks's initial statement did not admit he had a "personal issue" or that the issue was a bias against appellant. The State suggests Burks's statement was merely an agreement with the trial court that
if he could not put aside a personal issue, he would have wasted everyone's time. The State contends Burks was not biased as a matter of law; thus, the trial court did not abuse its discretion in determining that bias did not exist.
Anderson, 633 S.W.2d at 854.
Law The Sixth Amendment to the United States Constitution guarantees that in all criminal prosecutions the defendant is entitled to a trial "by an impartial jury." This right is applicable to the States through the Fourteenth Amendment.
Duncan v. Louisiana, 391 U.S. 145 (1968);
see also Hernandez v. State, 563 S.W.2d 947, 950 (Tex.Crim.App. 1978). A party may challenge any prospective juror who demonstrates a bias or prejudice against the defendant. Tex. Code Crim. Proc. Ann. art. 35.16(a)(9) (Vernon 2006). The test is whether the bias or prejudice would substantially impair the prospective juror's ability to carry out his oath and instructions in accordance with the law.
Feldman v. State, 71 S.W.3d 738, 744 (Tex.Crim.App. 2002). Bias is established as a matter of law when a prospective juror admits he is biased for or against the defendant.
Anderson, 633 S.W.2d at 854. When a prospective juror is shown to be biased as a matter of law, he must be excused when challenged, even if he states he can set aside his bias and provide a fair trial.
Anderson, 633 S.W.2d at 854. It is left to the discretion of the trial court, however, to initially determine whether such a bias exists and the trial court's decision will be reviewed in light of all of the answers given.
Id. Unless bias or prejudice is established as a matter of law, the appellate court will not overturn the trial court's ruling.
Little v. State, 758 S.W.2d 551, 556 (Tex.Crim.App. 1988).
Standard of Review In determining whether a trial court improperly denied a challenge for cause, the appellate court examines the entire record to determine whether sufficient evidence exists to support the court's ruling. We defer to the trial court's decision because the trial judge has the unique opportunity to observe the demeanor and tone of prospective jurors.
Patrick v. State,
906 S.W.2d 481, 488 (Tex.Crim.App. 1995). We reverse only if the record establishes a clear abuse of discretion.
Cantu v. State,
842 S.W.2d 667, 682 (Tex.Crim.App. 1992).
Analysis We have reviewed the entire voir dire record. During general questioning of the jury panel by the prosecutor, Burks responded he could convict based on the testimony of one witness alone if he believed the elements of the offense were proven beyond a reasonable doubt. Burks also responded he could envision a burglary of a habitation case for which he could assess a life sentence. And, during questioning by defense counsel, Burks responded that based upon the evidence presented in this case, he could consider giving the minimum sentence of two years. Burks specifically stated he would not be affected by the fact he had been a victim of a similar crime. Appellant was in no way connected with the offense committed against Burks and Burks stated he would not hold that offense against appellant. In determining Burks was not biased as a matter of law, the trial judge specifically observed and considered his demeanor and mannerisms. Having reviewed the entire record on voir dire, and giving due deference to the trial judge's clear advantage of personal observation of Burks's demeanor and mannerisms, we conclude the record does not reflect the trial court abused its discretion when it determined Burks was not biased as a matter of law against appellant. Accordingly, no error by the trial court in disallowing a challenge for cause against Burks has been shown. We affirm.
The indictment alleged two prior convictions: burglary of a habitation and burglary of a vehicle.
At this point the jury had not yet been sworn.