Gregory Wayne McAfee v. State ( 2008 )

Affirmed and Memorandum Opinion filed October 21, 2008

Affirmed and Memorandum Opinion filed October 21, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-07-00078-CR

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GREGORY WAYNE MCAFEE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 212th District Court

Galveston County, Texas

Trial Court Cause No. 04CR1304

M E M O R A N D U M   O P I N I O N

Appellant Gregory Wayne McAfee challenges his conviction for aggravated sexual assault of a child, claiming the trial court erred by (1) improperly selecting and impaneling the alternate juror, (2) failing to discharge the alternate juror before deliberations, (3) denying appellant=s motion for mistrial on the basis of alleged juror prejudice, and (4) admitting a letter written by appellant into evidence.  We affirm.

I. Factual and Procedural Background

Appellant=s stepdaughter, the complainant, made outcry statements to her aunt, describing sexual contact and sexual intercourse with appellant when she was between the ages of ten and eleven years old.  The aunt reported the child=s statements to authorities, who investigated the child=s claims.  Appellant was charged with aggravated sexual assault of a child, to which he pleaded Anot guilty.@

At a jury trial, the State presented testimony from the child, the child=s aunt and mother, and authorities involved in the investigation.  Appellant testified.  The jury found appellant guilty as charged and assessed punishment at thirty years= confinement.

II. Issues and Analysis

A.      Did the trial court err in improperly selecting the alternate juror?

In his first issue, appellant claims that the trial court erred in selecting the alternate juror in violation of article 33.011 of the Texas Code of Criminal Procedure.  Appellant claims that two other venire members should have been selected for the position of alternate juror, but those two people were improperly excused by the trial court. 

Appellant has failed to preserve error.  See Tex. R. App. P. 33.1(a); Butler v. State, 872 S.W.2d 227, 234 (Tex. Crim. App. 1994); Hovila v. State, 562 S.W.2d 243, 247 (Tex. Crim. App. 1978).  A>[F]ailure to object to the improper exclusion of a venire-member waives that right and it cannot be considered on appeal.=@  Cano v. State, 663 S.W.2d 598, 601 (Tex. App.CAustin 1983, no pet.) (quoting Boulware v. State, 542 S.W.2d 677, 683 (Tex. Crim. App. 1976)).  Even if we were to presume that the two potential alternate jurors were improperly excluded from serving as the alternate juror, appellant raised no objections to the impaneled jury or the selected alternate juror.  See Butler, 872 S.W.2d at 234. By failing to object to the impaneled jury and selected alternate juror , appellant waived any alleged error.  See id.; Hovila, 562 S.W.2d at 247 (failing to voice objection at time prospective juror was excused by the trial court sua sponte presents nothing for review); Cano, 663 S.W.2d at 601.  Though appellant acknowledges waiver under general appellate rules, in that his complaint was not raised before the trial court, appellant argues that the error was not known to his trial counsel at the time the jurors were selected in order to lodge an objection.  According to appellant, as a result of the trial court=s error, he was denied a lawfully constituted jury panel, due process of law, and equal protection.  However, appellant provides no legal authority to support his averment beyond this bald assertion.  See Tex. R. App. P. 38.1(h). Therefore, we overrule appellant=s first issue.

B.      Did the trial court err in failing to discharge the alternate juror before deliberations?

In his second issue, appellant complains that the alternate juror was not discharged before the jury deliberated.  In neither the guilt-innocence phase, the punishment phase, nor in appellant=s motion for new trial did appellant raise this issue with the trial court.  Appellant raises this complaint for the first time on appeal.  See Klapesky v. State, 256 S.W.3d 442, 452 (Tex. App.CAustin 2008, pet. ref=d).  Failure to make a timely, specific objection at trial preserves nothing for appellate review.  See Tex. R. App. P. 33.1(a); Klapesky, 256 S.W.3d at 452.^[1] Therefore, we overrule appellant=s second issue.

C.      Did the trial court err in denying appellant=s motions for mistrial on the basis of potential juror bias or prejudice?

In his third issue, appellant complains the trial court erred in denying appellant=s motions for mistrial when, twice in the course of the proceedings, a juror informed the court of being familiar with the child complainant or the child=s grandmother through work with a school system.  Though appellant acknowledges he did not question venire members during voir dire regarding their knowledge of the child or the child=s grandmother, appellant claims the trial court should have granted his motions when the juror=s potential prejudice or bias was discovered.

During voir dire, neither the State nor appellant=s trial counsel asked venire members whether they knew the child complainant or the grandmother in this case.  Appellant=s trial counsel acknowledged as much when she first moved for a mistrial, and appellant concedes as much on appeal, stating in his appellate brief that both parties Afailed to inquire during voir dire if any of the expected witnesses were known to the prospective jurors.@^[2]  During the trial testimony of the complainant=s mother, a juror sent a note to the trial judge, informing the court of her familiarity with the complainant=s grandmother through a job at a school in 1999.  The juror indicated that this familiarity would not influence her decision.  The State did not call the grandmother as a witness.  Though appellant=s trial counsel moved for a mistrial, the trial court denied this motion, and appellant=s trial counsel did not request to question the juror further.  After the complainant=s trial testimony, the same juror wrote a note informing the court that she worked at the same school the complainant attended in 1999-2000; however, she indicated her ability to remain fair and impartial.  Appellant=s trial counsel did not request to question the juror.  Appellant moved for a mistrial the next day, which the trial court denied.

We review the trial court=s decision to deny a mistrial and to deny a new trial for an abuse of discretion.  Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999); Rent v. State, 982 S.W.2d 382, 384 (Tex. Crim. App. 1998). 

An accused in a criminal prosecution has the right to a fair trial by an impartial jury.  Tex. Const. art. I, ' 10.  When a juror withholds material information in the voir-dire process without fault or lack of diligence exercised by the complaining party, the parties are denied an opportunity to exercise challenges, which hampers the selection of an impartial jury.  Franklin v. State, 12 S.W.3d 473, 477B78 (Tex. Crim. App. 2000); Armstrong v. State, 897 S.W.2d 361, 363 (Tex. Crim. App. 1995); Salazar v. State, 562 S.W.2d 480, 482 (Tex. Crim. App. 1978).  To obtain a reversal on an allegation that a juror withheld information in voir dire, appellant must show that material information was Awithheld@ despite due diligence exercised by the complaining party who acted in good faith on the answers given by a juror in voir dire.  See Frankin, 12 S.W.3d at 478 (A[M]ere familiarity with a witness is not necessarily material information.@); De La Rosa v. State, 658 S.W.2d 162, 164 (Tex. Crim. App. 1983); see also Brown v. State, 183 S.W.3d 728, 737 (Tex. App.CHouston [1st Dist.] 2005, pet. ref=d).  Information is considered to be Awithheld@ when the defense counsel asked questions in voir dire that were calculated to uncover material information, and the juror did not reveal the information.  Jones v. State, 596 S.W.2d 134, 137 (Tex. Crim. App. 1980), overruled on other grounds by Sneed v. State, 670 S.W.2d 262, 267 n.7 (Tex. Crim. App. 1984).  An appellant=s trial counsel must be diligent in eliciting pertinent information from venire members during voir dire in an effort to reveal prejudice or potential bias.  Gonzales v. State, 3 S.W.3d 915, 917 (Tex. Crim. App. 1999).  Unless the defense counsel asks such questions, the material information that a juror fails to disclose is not Awithheld.@  Id.; Armstrong, 897 S.W.2d at 364.  No error exists when defense counsel has not met the obligation of asking specific questions calculated to elicit information which may be considered to indicate a juror=s inability to be impartial or truthful.  Gonzales, 3 S.W.3d at 917.

In this case, appellant admits that neither the State nor appellant=s trial counsel inquired as to whether the venire members knew the complainant or the grandmother.  Appellant has not demonstrated that the juror Awithheld@ information as contemplated by Texas case law because appellant=s trial counsel did not ask questions during voir dire that were calculated to reveal impartiality regarding whether the venire members knew the child complainant or the child=s grandmother, who did not testify nor was a potential witness.  See Gonzales, 3 S.W.3d at 917B18; see also Franklin, 12 S.W.3d at 478 (emphasizing that juror withheld material information in voir dire, even if unintentionally, Adue to no fault of [appellant=s] own@ when appellant=s trial counsel questioned the juror in voir dire about her familiarity with the complainant) (emphasis in original).  Because appellant asked no such questions of the venire members, the juror did not withhold such information so as to constitute misconduct warranting a reversal.  See Gonzales, 3 S.W.3d at 917B18; Franklin, 12 S.W.3d at 478 (concluding that Abecause appellant acted in voir dire on the answers given to him, he was deprived of the opportunity to either challenge [the juror] for cause or peremptorily strike her.@).  Therefore, no error occurred in this case because appellant=s trial counsel did not ask specific questions to bring out information that may indicate a juror=s impartiality nor did appellant=s trial counsel ask follow-up questions after uncovering the potential bias.  See Gonzales, 3 S.W.3d at 916B17.

Furthermore, appellant offers no legal authority beyond his assertion that the trial court was obligated to Atake an active approach to correct the problem at the time of its discovery.@ See Tex. R. App. P. 38.1(h).  Appellant complains that the trial court erred in accepting the juror=s word, as written in the notes, that her familiarity with the child complainant=s family would not influence her decision or impact her ability to decide the case fairly and impartially.  However, appellant has not presented a single argument or citation in support of this assertion, nor has appellant addressed any of the governing legal principles and applied them to the facts in this case, that his trial counsel did not ask such questions during voir dire or seek to question the juror after the juror acknowledged her familiarity.^[3] See King v. State, 17 S.W.3d 7, 23 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).

Because appellant=s trial counsel did not ask venire members questions calculated to elicit information regarding the extent of their familiarity with the complainant=s family, the information cannot be considered Awithheld@ under Texas case law and no error has occurred.  See Gonzales, 3 S.W.3d at 917B18.  Therefore, the trial court did not abuse its discretion in denying appellant=s motion for mistrial.  See Gonzales, 3 S.W.3d at 917B18.  Accordingly, we overrule appellant=s third issue.

D.      Did the trial court err in admitting into evidence a letter written by appellant to the child complainant?

In his final issue, appellant complains that the trial court erred in admitting into evidence a letter purportedly written by appellant to the complainant because the letter allegedly was illegally obtained.

To preserve a complaint for appellate review, a party must make a timely request, objection, or motion with sufficient specificity to apprise the trial court of the complaint.  Tex. R. App. P. 33.1(a); Saldano v. State, 70 S.W.3d 873, 886B87 (Tex. Crim. App. 2002).  Appellant has not cited, and we have not found any place in the appellate record showing that appellant raised the issue of illegally obtained evidence in the trial court.  At trial appellant objected to the letter on the basis of authenticity because appellant claimed the State did not establish that the letter was written by appellant.  Furthermore, appellant has failed to preserve this complaint for review because his appellate contention does not comport with his argument at trial.  See Tex. R. App. P. 33.1(a); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002).  An objection grounded on one legal basis in the trial court may not be used to support a different legal theory on appeal. Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990).  A reviewing court will not consider errors, even of constitutional magnitude, not called to the trial court=s attention.  Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995).  Therefore, we overrule appellant=s fourth issue.

The judgment of the trial court is affirmed.

/s/      Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed October 21, 2008.

Panel consists of Justices Frost, Seymore, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  In addition, our record does not indicate whether the trial court dismissed the alternate juror before deliberations.  On this silent record, we cannot presume that the trial court committed the alleged error.

^[2]  The record indicates that during voir dire, appellant=s trial counsel asked venire members whether they knew the named law enforcement officers involved in the case, a nurse, and the child=s mother.  However, neither party asked whether venire members knew the complainant or her grandmother.

^[3]  Appellant cites two cases for support that he was denied a right to a fair and impartial jury because the trial court should have questioned the juror upon discovery of the potential prejudice:  Franklin v. State, 138 S.W.3d 351, 355 (Tex. Crim. App. 2004) and Castellanos v. State, No. 13-01-023-CR, 2005 WL 1981519, at *3B4 (Tex. App.CCorpus Christi Aug. 18, 2005, no pet.) (mem. op., not designated for publication). These two cases are factually distinguishable from the case at hand in that in these cases, the appellants= respective trial counsel questioned venire members about their familiarity with potential witnesses and objected when the jurors withheld material information.  Franklin, 138 S.W.3d at 355; Castellanos, 2005 WL 1981519, at *3B4.