Christopher Lee Phillips v. State ( 2012 )

IN THE
TENTH COURT OF APPEALS
No. 10-09-00260-CR
CHRISTOPHER LEE PHILLIPS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 85th District Court
Brazos County, Texas
Trial Court No. 08-01833-CRF-85
MEMORANDUM OPINION
Christopher Lee Phillips was convicted of Injury to a Child and sentenced to 30
years in prison. See TEX. PENAL CODE ANN. §22.04(c) (West Supp. 2011). Because the
trial court did not err in denying Phillips’ challenges for cause and because we will not
change the scope of review for sufficiency of the evidence as established by the Court of
Criminal Appeals, the trial court’s judgment is affirmed.
CHALLENGES FOR CAUSE
In his first issue, Phillips contends the trial court erred in denying his challenges
for cause to two jury panelists, Ross Eckhardt and Mark Hartman. Specifically, he
contends that these two panelists were biased against him, in violation of article 35.16,
in that they could never believe a police officer would lie. See TEX. CODE CRIM. PROC.
ANN. art. 35.16(a)(9) (West 2006).
Preservation of Error
To preserve error for a trial court's erroneous denial of a challenge for cause,
appellant must show that: (1) he asserted a clear and specific challenge for cause; (2) he
used a peremptory challenge on the complained-of venire member; (3) his peremptory
challenges were exhausted; (4) his request for additional strikes was denied; and (5) an
objectionable juror sat on the jury. Davis v. State, 329 S.W.3d 798, 807 (Tex. Crim. App.
2010); Green v. State, 934 S.W.2d 92, 105 (Tex. Crim. App. 1996). The State concedes that
Phillips properly preserved error with respect to each challenged panelist.
Law
Article 35.16(a)(9) of the Code of Criminal Procedure requires that a prospective
juror be dismissed for cause when challenged if the juror “has a bias or prejudice in
favor of or against the defendant." TEX. CODE CRIM. PROC. ANN. art. 35.16(a)(9) (West
2006); Anderson v. State, 633 S.W.2d 851, 853 (Tex. Crim. App. 1982). Bias is an
inclination toward one side of an issue rather than to the other which leads to the
natural inference that a juror will not act with impartiality. Anderson, 633 S.W.2d at 853
(citing Compton v. Henrie, 364 S.W.2d 179 (Tex. 1963)).
When bias or prejudice are not established as a matter of law, the trial court has
discretion to determine whether bias or prejudice actually exists to such a degree that
the prospective juror is disqualified and should be excused from jury service. Id. at 853-
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854. We look at the entire record when reviewing a trial court's decision to deny a
challenge for cause to determine if there is sufficient evidence to support the ruling.
Davis, 329 S.W.3d at 807; Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim. App. 2002).
The test is whether a bias or prejudice would substantially impair the venire member's
ability to carry out the juror's oath and judicial instructions in accordance with the law.
Davis, 329 S.W.3d at 807; Gardner v. State, 306 S.W.3d 274, 295 (Tex. Crim. App. 2009).
Before venire members may be excused for cause, the law must be explained to them,
and they must be asked whether they can follow that law, regardless of their personal
views. Id. The proponent of a challenge for cause has the burden of establishing that
the challenge is proper. Id. The proponent does not meet this burden until he has
shown that the venire member understood the requirements of the law and could not
overcome his or her prejudice well enough to follow the law. Id.
We review a trial court's ruling on a challenge for cause with considerable
deference because the trial judge is in the best position to evaluate a venire member's
demeanor and responses. Gardner, 306 S.W.3d at 295-96. A trial judge's ruling on a
challenge for cause may be reversed only for a clear abuse of discretion. Id. at 296.
When a venire member's answers are vacillating, unclear, or contradictory, we accord
particular deference to the trial court's decision. Id.
Phillips contends the panelists were shown to be biased as a matter of law. Bias
exists as a matter of law when a prospective juror admits that he is biased for or against
a 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 that he
Phillips v. State Page 3
can set his bias aside and provide a fair trial. Id. However, it is left to the discretion of
the trial court to first determine whether or not bias exists. Id. Where the juror states he
believes that he can set aside any influences he may have, and the trial court overrules a
challenge for cause, its decision will be reviewed in light of all of the answers the
prospective juror gives. Id.
Phillips relies on the Court of Criminal Appeals’ opinion in Hernandez to support
his argument that the panelists were biased as a matter of law. Hernandez v. State, 563
S.W.2d 947, 950 (Tex. Crim. App. 1978). In Hernandez, the Court held that a jury panelist
was challengeable for cause under article 35.16(a)(8)1 for having a bias or prejudice in
favor of or against the defendant, if the panelist could not "impartially judge the
credibility of the witnesses." Id. In that case, the panelist stated that she would always
believe police officers who testified at trial. Id. But the Court later explained in Jones v.
State, that
Our holding in Hernandez, however, must not be interpreted to mean that
a veniremember is challengeable for cause simply because he would be
more skeptical of a certain category of witness than of witnesses generally.
What we meant in Hernandez was that litigants are entitled to jurors who
will be genuinely open-minded and persuadable, with no extreme or
absolute positions regarding the credibility of any witness. We could not
have meant that jurors must be completely impartial and free of any trace
of skepticism toward any category of witness. Complete impartiality
cannot be realized as long as human beings are called upon to be jurors.
No person sitting as a juror can completely remove his own experiences,
beliefs, and values, however hard he may try.
Jones v. State, 982 S.W.2d 386, 390 (Tex. Crim. App. 1998) (emphasis in original).
1 Now article 35.16(a)(9).
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Facts
In this case, Phillips began this line of questioning by asking the panel whether
they would tend to believe an officer over another person, not knowing either one.
When Hartman questioned whether Phillips meant in any case, because he thought that
was significant, Phillips clarified the example by adding to it that neither the officer nor
the other person had spoken yet. Hartman replied that most people would go with the
officer. Many of the panelists agreed. Phillips then changed the scenario and asked the
panelists whether, if in a court of law, they would automatically tend to believe a police
officer over someone else just based on the fact that the person is an officer. After the
State requested a bench conference, Phillips again clarified his scenario. This time, he
asked whether, if an officer sat in a courtroom and another person sat down next to
him, knowing both were going to be questioned, the panelists would tend to believe the
officer automatically by virtue of the fact that he is an officer. One panelist changed his
answer from yes to no, but the others did not. Phillips then asked if anyone had a
family member or close friend who was a law enforcement officer or was, themselves, a
law enforcement officer. Eleven panelists responded affirmatively, including Eckhardt
who has an uncle and a cousin in law enforcement, and Hartman who is a police officer.
None of these 11 panelists thought their relationships with law enforcement officers
would impact their verdict.
Eckhardt
On individual questioning the next day, Phillips asked Eckhardt
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Do you believe a police office would always tell the truth? And this is not
after they actually take the stand and you hear about their experience, but
prior to them even testifying, do you – do you have an assessment or
belief that a police officer would always tell the truth that’s been called to
testify?
Eckhardt answered, “If called to testify, yes.” But, upon questioning by the State and
the Court, Eckhardt agreed that he could take an oath to follow the Court’s instructions
regardless of his personal feelings about the instructions, that he would tend to give
more weight to the testimony of a police officer over another witness but could be fair
and decide the case on the merits, that he could follow the instruction that he is the sole
judge of the credibility of the witnesses and the weight to be given their testimony, that
he could observe the courtroom demeanor of all the witnesses and determine who is
telling the truth and who may not be, and if it appeared that a police officer may not be
totally truthful, could make that finding in the verdict.
Phillips then reiterated that Eckhardt’s previous response had been “if a police
officer testified, prior to them testifying, they’re called to testify, you believe that they
would always tell the truth.” Eckhardt replied, “Well, under oath.” Phillips affirmed
that the officer would be under oath. Then Eckhardt was asked, “You believe that prior
to them testifying that they would always tell the truth?” Eckhardt replied, “In my
heart I do, yes.” The Court then clarified with Eckhardt that he understood that police
officers are human and that there may be certain underlying facts that would cause
them to be tempted not to tell the truth. When asked if he could “call the balls and
strikes,” Eckhardt replied that “every situation is different and I understand that…I can
make that decision.”
Phillips v. State Page 6
Eckhardt’s answers were not extreme or absolute regarding the credibility of
police officers. Further, the law was explained to him and he was asked whether he
could follow that law, regardless. Phillips did not show Eckhardt could not overcome
his bias, if any, well enough to follow the law. Thus, the trial court did not err in
overruling Phillips’ challenge for cause.
Hartman
When Hartman was subjected to individual questioning by Phillips, he was
asked,
Prior to a police officer testifying, obviously when they testify you can
assess their credibility, their experience, all that kind of stuff, but I’m just
saying right now as you stand here prior to the police officer testifying, do
you believe that if a police officer is called to testify that that police officer
will always tell the truth?
Hartman replied that he believed it was their job to tell the truth. When asked if that
meant “yes,” Hartman responded affirmatively. The State then explained that the judge
would give him instructions that permits the jurors to give more weight to the
testimony of a police officer but requires that Hartman be fair and decide the case on
the merits. Hartman agreed to following the law as a part of his job as a juror. He also
agreed that he would evaluate everyone on the same plane and on what he would hear
about their training and experience before making a decision if he was given that
instruction.
Hartman was questioned further by Phillips about whether he believed other
witnesses prior to testifying would always tell the truth. Hartman replied that he
believed most people were honest and would give them the benefit of the doubt. He
Phillips v. State Page 7
did not believe, however, that all witnesses would always tell the truth before giving an
oath; but he again stated that he normally gives them the benefit of the doubt. Hartman
then affirmed in response to a question by the Court that he would judge the credibility
of the witnesses “always” whether they were laymen, police officers, or others and
would apply the law to the facts.
Again, Hartman’s answers were not extreme or absolute regarding the credibility
of police officers. Further, the law was explained to him and he was asked whether he
could follow that law, regardless. Phillips did not show Hartman could not overcome
his bias, if any, well enough to follow the law. Thus, the trial court did not err in
overruling Phillips’ challenge for cause.
Conclusion
Because the trial court did not err in overruling Phillips’ challenges for cause, his
first issue is overruled.
SUFFICIENCY OF THE EVIDENCE
In Phillips’ second issue, he contends the evidence is insufficient to support the
verdict because, he argues, two physicians who testified for the State were not qualified
to testify regarding the mechanisms causing the injuries to the child; therefore,
disregarding the testimony of these two physicians, the evidence is insufficient to
support causation. No objection was made to the qualifications of the physicians.
Phillips invites this Court to change the scope of review of a sufficiency of the
evidence complaint in a criminal proceeding by using the civil standard expressed by
the Texas Supreme Court in Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706
Phillips v. State Page 8
(Tex. 1997). The Court of Criminal appeals has consistently held that in conducting a
sufficiency review the reviewing court is to review all the evidence, even the evidence
that was improperly submitted. See Johnson v. State, 967 S.W.2d 410, 412 (Tex. Crim.
App. 1998); Thomas v. State, 753 S.W.2d 688, 695 (Tex. Crim. App. 1988). See also Russeau
v. State, 171 S.W.3d 871, 879 (Tex. Crim. App. 2005); Dewberry v. State, 4 S.W.3d 735, 740
(Tex. Crim. App. 1999). This is admittedly different than the scope of review in a civil
proceeding wherein the reviewing court does not consider improperly submitted
evidence when reviewing sufficiency of the evidence issues. See Havner, 953 S.W.2d at
711. As an intermediate appellate court, it is not our role to modify the scope of what
we review in conducting our review of the evidence under the proper standard of
review. Accordingly, we must decline Phillips’ invitation to change the scope of review
as established by the Court of Criminal Appeals. Because we must review all the
evidence and because Phillips does not contend the evidence is insufficient with the
inclusion of the physicians’ testimony, Phillips’ second issue is overruled.
CONCLUSION
Having overruled each issue on appeal, we affirm the trial court’s judgment.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed May 30, 2012
Do not publish
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