Kim Wayne Karr v. State ( 2003 )

NO. 12-02-00247-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS

KIM WAYNE KARR,

§ APPEAL FROM THE 124TH

APPELLANT

V.

§ JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE

§ GREGG COUNTY, TEXAS

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MEMORANDUM OPINION  

Kim Wayne Karr ("Appellant") appeals his conviction of driving while intoxicated, for which he was sentenced to imprisonment for ten years and fined ten thousand dollars. Appellant raises one issue on appeal. We affirm.

Background  

Appellant was charged with driving while intoxicated. The record reflects that Appellant had been previously convicted of driving while intoxicated on two occasions. Appellant pleaded guilty and requested that the jury assess his punishment.

During the subsequent voir dire examination, the prosecuting attorney queried of the venire as follows:

What I need to know is if there's anybody on this panel who has had some kind of contact with this type of offense or with the criminal justice system that puts me, the State of Texas, at any disadvantage? .... Is there anyone that has a problem sitting on this kind of case tomorrow, just as a panel as a whole? ⁽¹⁾

Next, during Appellant's voir dire examination, Appellant's counsel asked the venire, "Do you have any problem sitting on a D.W.I. case?"

Ultimately, the jury assessed Appellant's punishment at imprisonment for ten years and a fine of ten thousand dollars. Appellant filed a motion for new trial arguing that certain jurors had not responded truthfully to the aforementioned voir dire questions. Appellant's motion was supported by the affidavits of two jurors, James E. Pete ("Pete") and Leisa Juanita Mitchell ("Mitchell"). In their respective affidavits, Pete and Mitchell testified that a female juror, whose name neither of them knew, admitted that she failed to answer a voir dire question truthfully and conceded that she should have responded in the affirmative to the voir dire question regarding jurors or their family members who had been in automobile accidents involving drunken drivers. Both further testified that a fellow male juror, whose name neither of them knew, admitted that he also had a family member who had been in an automobile accident involving a drunken driver. Pete and Mitchell elaborated on their affidavit testimony at the hearing on Appellant's motion for new trial. Specifically, Mitchell testified that the male juror remarked, immediately prior to delivery of the verdict, that the jury was "the most disgraceful group of people [he had] ever been with," that he had prayed he would make the right decision, and that he felt the right decision had been made. The jury foreperson, Ty Sharp ("Sharp"), testified that the statements of the two jurors in question had no effect on the outcome of the sentence imposed on Appellant. The trial court subsequently overruled Appellant's motion for new trial and this appeal followed.

Inaccurate Answers to Voir Dire Questions

We review a trial court's denial of an appellant's motion for new trial for abuse of discretion. See Beck v. State, 573 S.W.2d 786, 791 (Tex. Crim. App. 1978). We will not overrule the trial court if the trial court's ruling on a motion for new trial is at least within the zone of reasonable disagreement. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991).

The jury voir dire examination is designed to ensure, to the fullest extent possible, that an intelligent, alert, disinterested, impartial, and truthful jury will perform the duty assigned to it by our judicial system. See Jones v. State, 596 S.W.2d 134, 137 (Tex. Crim. App. 1980). When a juror withholds material information in the voir dire process, the parties are denied the opportunity to intelligently exercise their challenges, thus hampering their selection of a disinterested and impartial jury. See Salazar v. State, 562 S.W.2d 480, 482 (Tex. Crim. App. 1978), overruled in part on other grounds, Sneed v. State, 670 S.W.2d 262, 265 (Tex. Crim. App. 1984). However, counsel must be diligent in eliciting pertinent information from prospective jurors during voir dire in an effort to uncover potential prejudice or bias. See Gonzales v. State, 3 S.W.3d 915, 917 (Tex. Crim. App. 1999). Counsel has an obligation to ask questions calculated to bring out that information which might be said to indicate a juror's inability to be impartial, truthful, and the like. Id. Unless defense counsel asks such questions, we must hold that the purportedly material information which a juror fails to disclose is not really "withheld" so as to constitute misconduct which would warrant a reversal. Id. Counsel must ask specific questions, not rely on broad ones, to satisfy this obligation. Id.  

Appellant argues that the record reflects that jurors withheld material information, were biased and that such circumstances affected the severity of Appellant's sentence. We disagree. The State specifically asked if there was "anybody on [the] panel who has had some kind of contact with [such an] offense or with the criminal justice system that [put] ... the State of Texas, at any disadvantage" (emphasis added). Appellant asked if anyone on the panel had "any problem sitting on a D.W.I. case." While the affidavit and trial testimony of Pete and Mitchell indicates that two jury members had family members who had been in automobile accidents with drunken drivers, their respective testimony in no way indicates that either of the jurors, as a result of such relationships, had any problem sitting on a jury for a D.W.I. case or felt that they could cause either party to be put at a disadvantage by serving on the jury. Thus, we conclude that the trial court's determination as to whether these two jurors answered the voir dire questions inaccurately is, at the least, within the zone of reasonable disagreement.

Moreover, our review of the record does not cause us to conclude that any member of the jury was biased or that the fact that certain members of the jury had family members who had been in accidents with drunk drivers affected the severity of Appellant's sentence. To the contrary, Sharp testified that the statements of the two jurors in question had no effect on the outcome of the sentence imposed on Appellant. Further still, Mitchell's testimony indicates that the male juror was intent on making the right decision, had prayed about the matter, and, in fact, believed the jury had made the right decision. As such, we conclude that the trial court's determination as to whether the jurors in question were biased or whether the aforementioned circumstances affected the severity of Appellant's sentence was likewise, at the least, within the zone of reasonable disagreement. Therefore, we hold that the trial court did not abuse its discretion in overruling Appellant's motion for new trial. Appellant's sole issue is overruled.

Conclusion

Having held that the trial court did not abuse its discretion in overruling Appellant's motion for new trial, we affirm the ruling of the trial court.

JAMES T. WORTHEN   

Chief Justice

Opinion delivered March 12, 2003.

Panel consisted of Worthen, C.J. and Griffith, J.

(DO NOT PUBLISH)

1. The record reflects that some jurors indicated to the State of Texas (the "State") that they would have a problem sitting on a jury hearing such a case.