Michael Edwin Hicks v. State ( 2020 )

Opinion issued March 31, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00603-CR
———————————
MICHAEL EDWIN HICKS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 235th District Court
Cooke County, Texas
Trial Court Case No. CR16-00449
OPINION
A jury convicted appellant, Michael Edwin Hicks, of the third-degree felony
of Driving While Intoxicated—Third Offense,1 and assessed his punishment at
1
See TEX. PENAL CODE ANN. §§ 49.04(a), 49.09(b)(2) (providing that driving while
intoxicated is third-degree felony if person has previously been convicted two times
of driving while intoxicated); see id. § 12.42(a) (providing for enhancement of
sixteen years’ confinement and a $10,000 fine. In three issues, appellant contends
that (1) the prosecutor committed misconduct and violated the Fifth Amendment and
Brady v. Maryland by failing to disclose that a juror was the prosecutor’s brother-
in-law; (2) the prosecutor’s withholding of this information violated the Michael
Morton Act; and (3) the prosecutor’s withholding of this information and the trial
judge’s failure to disclose that a different juror was her brother violated the Fifth and
Sixth Amendment’s guarantees of a fair and impartial jury and undermined
confidence in the judicial proceedings.
We affirm.
Background
On February 16, 2015, Texas Department of Public Safety Trooper M.
Westervelt was on patrol and “running stationary radar” while parked along
Interstate 35 in Cooke County, Texas.2 At around 10:30 p.m., Westervelt
encountered appellant, who was driving 92 miles-per-hour in a 75 miles-per-hour
speed zone. Westervelt conducted a traffic stop, and, as he approached appellant’s
truck, he saw an open half-gallon bottle of vodka that was half full sitting on the
punishment for third-degree felony to punishment range for second-degree felony
if defendant has prior felony conviction).
2
The Texas Supreme Court transferred this appeal from the Court of Appeals for the
Second District of Texas to this Court pursuant to its docket-equalization authority.
See TEX. GOV’T CODE ANN. § 73.001 (“The supreme court may order cases
transferred from one court of appeals to another at any time that, in the opinion of
the supreme court, there is good cause for the transfer.”).
2
backseat floorboard. Westervelt smelled the odor of alcohol while speaking with
appellant and noticed that appellant had slurred speech and bloodshot eyes. When
appellant denied the presence of an open bottle of alcohol in the truck, he became
belligerent and Westervelt decided to conduct standardized field sobriety tests.
Westervelt concluded that appellant was intoxicated, and he placed appellant under
arrest for driving while intoxicated (DWI). Westervelt obtained a search warrant for
a blood draw, and analysis of appellant’s blood sample reflected a blood alcohol
concentration of 0.19.
During voir dire, the trial judge introduced the parties, including the two
prosecutors, appellant, and the two defense attorneys. The judge told the
veniremembers: “Now, remember that you took an oath that you will tell the truth[,]
so be truthful when the lawyers ask you questions and always give complete
answers. If you do not answer a question that applies to you, that violates your oath.”
Later, the judge stated: “Also, you know, you’ve just heard the case called and you
might think, well, I might know a little bit about that or about the attorneys.” The
judge reminded the veniremembers not to talk among themselves or to anyone else
on any subject connected with the trial. The judge also stated:
But if your beliefs are in conflict with the law in this case, or you think
that you might have personal knowledge about this case or about the
attorneys in this case or the parties in this case, then perhaps your
service would be rather rendered in another case where those conflicts
or that knowledge does not exist for you.
3
No veniremember volunteered that they were related to any participant in the case.
Near the end of the State’s questioning, the prosecutor asked, “[D]o you have
any questions before I sit down, because this will be the last time that I can talk to
you?” Several veniremembers spoke up and mentioned that they had jobs related to
law enforcement, and one veniremember stated that he had been a patrol officer in
Cooke County and he probably knew the Trooper that the State planned to call as a
witness. The trial judge instructed the prosecutor to say the name of the Trooper who
would be testifying, and when the prosecutor identified Westervelt, the
veniremember stated that Westervelt was a very close friend and the veniremember
“would take his word” that his testimony was true. The prosecutor later said, “[Y]ou
can know the trooper. All the judge is asking is that you can be fair and impartial to
both sides.”
Defense counsel began voir dire by asking if any of the veniremembers knew
himself, his co-counsel, or appellant. One veniremember indicated that he had
known defense counsel for several years in a “business, personal” capacity, and
defense counsel asked if the veniremember could “set that aside and judge this trial
fairly.” The veniremember responded that he could do so. Later, another
veniremember mentioned that she had seen appellant “around many times,” and the
trial judge instructed her not to “say any personal experience you’ve had with him.”
This veniremember stated that she could not put her past experience with appellant
4
aside and decide the case based solely on the evidence presented in the courtroom,
and the trial court later granted the State’s challenge for cause against this
veniremember. During voir dire, no veniremember mentioned that he knew or was
related to the prosecutor or the judge, and neither the State nor the defense counsel
specifically asked if any veniremember knew or was related to the prosecutor or the
judge.
Several veniremembers were challenged for cause. After the parties exercised
their peremptory strikes and the jury was seated, the trial judge asked if either party
had “any objections or exceptions to the qualifying, examining, striking or seating
of the jury as a whole or any individual member thereof.” Both the prosecutor and
defense counsel stated that they had no objection, and neither challenged “the
qualifications or selection of any of the jurors or of the jury as a whole.”
The jury found appellant guilty of the offense of DWI—third offense and
assessed his punishment at sixteen years’ confinement and a $10,000 fine. Appellant
filed a motion for new trial on the basis that the guilty verdict was obtained through
juror misconduct. Specifically, appellant argued that “dishonest statements or
omissions by one or more empaneled jurors impacting their eligibility as jurors”
violated his Fifth and Sixth Amendment rights and his rights under the Texas
Constitution.
5
Appellant also filed a motion seeking recusal of the trial judge. Appellant
argued:
Defendant has information and belief that the Presiding Judge Janelle
Haverkamp has personal knowledge of disputed evidentiary facts
concerning Defendant’s pending motion for new trial. Defendant
further has information and belief that the Presiding Judge Janelle
Haverkamp is within the third degree of relationship of an individual
who is likely to be a material witness in the upcoming motion for new
trial hearing. Defendant’s basis is set out below.
Undersigned appellate counsel, Kyle Therrian, has conferred with trial
counsel, Emmanuel Albarado and Jaime Gonzales regarding potential
appealable matters. Trial counsel indicated they learned via a
conversation between the presiding judge and prosecuting attorney that
one of the presiding jurors was a sibling of the presiding judge. Both
Mr. Albarado and Mr. Gonzales believe, to the best of their knowledge,
that the jury panel was asked whether they knew any other person in
the courtroom. To this inquiry trial counsel believes the panel provided
either a negative or non-response, indicating there was no relation
between members of the panel and any other person in the courtroom.
Undersigned counsel believes this is a sufficient basis of fact to proceed
with recusal.
Appellant argued that the juror’s “denial of information to the defense denies the
defense of the intelligent use of peremptory challenges” and that this right is the
basis of his motion for new trial. The trial judge ultimately recused herself from
ruling on appellant’s motion for new trial, and a new judge was assigned to the case.
Defense counsel sought leave to amend his motion for new trial, arguing that,
upon further investigation, he had learned that “the empaneled jury included one
individual who is the brother of the presiding judge [who had recused herself from
ruling on the motion for new trial] and another individual who is the brother-in-law
6
of the prosecuting attorney.” He argued that, in addition to juror misconduct, the
prosecutor improperly withheld his relationship with a juror who was “incapable or
unfit to serve on the jury” pursuant to the Code of Criminal Procedure. He argued
that the prosecutor’s failure to disclose this information violated appellant’s Fifth
and Sixth Amendment rights, Brady v. Maryland, and the Michael Morton Act,
which governs discovery in criminal cases in Texas. He argued “these two jurors
should not have been seated, and Defendant was entitled to know about their
relationships.” Defense counsel filed an amended motion for new trial raising these
arguments.
At the hearing on appellant’s motion for new trial, the prosecutor did not
testify but he stated: “[M]y brother-in-law was on the jury and the judge’s brother
was on the jury as well.” The prosecutor signed a stipulation to that effect.
Appellant’s trial counsel testified at the hearing. Appellant’s appellate counsel and
trial counsel had the following exchange:
Q: [W]ere you made aware of that fact that the prosecutor’s brother-
in-law was sitting on the jury?
A: Yes, I was made aware of the fact. I don’t know by who, but it
was during the trial or shortly thereafter. I can’t recall when it
was.
Q: Okay. But it wasn’t made aware—you weren’t made aware of
that fact during voir dire; is that fair?
A: Yes, I was not made aware during voir dire.
Q: And nobody on the defense team was either?
7
A: No, none of them were.
Q: Now, you brought something to my attention just before we
walked in here this morning with regard to other individuals who
the—that—or another individual who was familiar to you on the
jury, who was that individual?
A: Well, there was two. One was a gentleman that I bank with,
which was Van Knight. And then another one was a client that
we were presently representing. I believe his name was Cody
Schubert.
Q: Okay. Did you bring that information—did you make
information available to the Court and to the prosecutor?
A: Yes, we did.3
Q: Okay. At that point did you get any sort of reciprocal courtesy?
A: A reciprocal courtesy in regards to—
Q: Who they might have known on the jury?
A: Oh, no.
Q: When were you made aware that the judge’s brother sat on the
jury?
A: I was made aware by my co-counsel after—I think after
sentencing.
Q: Okay. So you weren’t aware of this fact during the pendency of
voir dire; is that fair to say?
A: Yes, I was not made aware during voir dire.
On cross-examination, trial counsel acknowledged that, during voir dire, he asked
the venire whether anyone knew him or his co-counsel—and one person indicated
3
Although the appellate record reflects that trial counsel acknowledged that he had a
“business, personal” relationship with veniremember Van Knight, the record
contains no indication that trial counsel informed the prosecutor and the trial judge
that one of his current clients was on the venire.
8
that he knew counsel, but counsel’s alleged client did not speak up—but he did not
ask whether anyone knew the prosecutor or the trial judge. Appellant did not call
any other witnesses, such as the challenged jurors, at the hearing.
The newly-assigned trial judge denied appellant’s motion for new trial. This
appeal followed.
Duty to Disclose Familial Relationship to Juror
Appellant’s three issues on appeal all arise out of the prosecutor’s failure to
disclose that one of the veniremembers—who ultimately served on the jury—was
his brother-in-law and the trial judge’s failure to disclose that another one of the
veniremembers—who also served on the jury—was her brother. In his first issue,
appellant argues that the prosecutor’s failure to disclose his familial relationship to
a juror violated the Fifth Amendment and Brady v. Maryland. In his second issue,
he argues that the prosecutor’s failure to disclose violated the Michael Morton Act,
Code of Criminal Procedure article 39.14. And in his third issue, he contends that
the trial judge’s and the prosecutor’s failures to disclose violated his Fifth and Sixth
Amendment rights to an impartial jury and undermined public confidence in judicial
proceedings.
A. Standard of Review and Governing Law
We review a trial court’s denial of a motion for new trial for an abuse of
discretion. Burch v. State, 541 S.W.3d 816, 820 (Tex. Crim. App. 2017). We will
9
reverse only if no reasonable view of the record could support the trial court’s ruling.
Id. This deferential standard of review requires us to view the evidence in the light
most favorable to the trial court’s ruling. Id. In determining whether the trial court
abused its discretion, we must not substitute our own judgment for that of the trial
court, and we must uphold the trial court’s ruling if it is within the zone of reasonable
disagreement. Id.; Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App. 2014)
(“We do not substitute our judgment for that of the trial court; rather, we decide
whether the trial court’s decision was arbitrary or unreasonable.”) (quoting Holden
v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006)).
The Sixth Amendment guarantees the assistance of counsel and the right to a
trial before an impartial jury. Franklin v. State, 138 S.W.3d 351, 354 (Tex. Crim.
App. 2004); Linnell v. State, 935 S.W.3d 426, 428 (Tex. Crim. App. 1996); see U.S.
CONST. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial jury of the State and district wherein the
crime shall have been committed . . . and to have the Assistance of Counsel for his
defence.”). Part of this constitutional guarantee includes “adequate voir dire to
identify unqualified jurors.” Franklin, 138 S.W.3d at 354 (citing Morgan v. Illinois,
504 U.S. 719, 729 (1992)). The Court of Criminal Appeals has also “consistently
held that essential to the Sixth Amendment guarantees of the assistance of counsel
and trial before an impartial jury ‘is the right to question veniremembers in order to
10
intelligently exercise peremptory challenges and challenges for cause.’” Id. (quoting
Raby v. State, 970 S.W.2d 1, 10 (Tex. Crim. App. 1998) (Baird, J., concurring and
dissenting)). “The voir dire process is designed to insure, to the fullest extent
possible, that an intelligent, alert, disinterested, impartial, and truthful jury will
perform the duty assigned to it.” Armstrong v. State, 897 S.W.2d 361, 363 (Tex.
Crim. App. 1995) (per curiam).
Code of Criminal Procedure article 35.16 addresses challenges for cause made
during voir dire. It provides:
(a) A challenge for cause is an objection made to a particular juror,
alleging some fact which renders the juror incapable or unfit to
serve on the jury. A challenge for cause may be made by either
the state or the defense for any one of the following reasons:
1. That the juror is not a qualified voter in the state and county under
the Constitution and laws of the state; provided, however, the
failure to register to vote shall not be a disqualification;
2. That the juror has been convicted of misdemeanor theft or a
felony;
3. That the juror is under indictment or other legal accusation for
misdemeanor theft or a felony;
4. That the juror is insane;
5. That the juror has such defect in the organs of feeling or hearing,
or such bodily or mental defect or disease as to render the juror
unfit for jury service, or that the juror is legally blind and the
court in its discretion is not satisfied that the juror is fit for jury
service in that particular case;
6. That the juror is a witness in the case;
11
7. That the juror served on the grand jury which found the
indictment;
8. That the juror served on a petit jury in a former trial of the same
case;
9. That the juror has a bias or prejudice in favor of or against the
defendant;
10. That from hearsay, or otherwise, there is established in the mind
of the juror such a conclusion as to the guilt or innocence of the
defendant as would influence the juror in finding a verdict. . . . ;
11. That the juror cannot read or write.
No juror shall be impaneled when it appears that the juror is subject to
the second, third or fourth grounds of challenge for cause set forth
above, although both parties may consent. All other grounds for
challenge may be waived by the party or parties in whose favor such
grounds of challenge exist.
TEX. CODE CRIM. PROC. ANN. art. 35.16(a); see id. art. 35.19 (“No juror shall be
impaneled when it appears that he is subject to the second, third or fourth cause of
challenge in Article 35.16, though both parties may consent.”).
Article 35.16(b) sets out three situations in which the State may make a
challenge for cause, and article 35.16(c) sets out two situations in which the defense
may make a challenge for cause. Id. art. 35.16(b)–(c). One challenge for cause that
the defendant may make is that the juror “is related within the third degree of
consanguinity or affinity, as determined under Chapter 573, Government Code, to
the person injured by the commission of the offense, or to any prosecutor in the
case.” Id. art. 35.16(c); see TEX. GOV’T CODE ANN. § 573.023(c)(2) (providing that
individual’s brother is within second degree of consanguinity); id. § 573.024(a)(2)
12
(providing that two individuals are related by affinity if spouse of one individual is
related by consanguinity to other individual); id. § 573.025(b) (providing that
individual’s relatives within third degree by affinity include “anyone related by
consanguinity to the individual’s spouse in one of the ways named in Section
573.023(c)”). The Code of Criminal Procedure does not include a similar provision
concerning challenges for cause of prospective jurors who are family members of
the trial judge.
With the exception of the second, third, and fourth challenges for cause listed
in article 35.16—that the prospective juror has been convicted of misdemeanor theft
or a felony; the prospective juror is under indictment or other accusation for
misdemeanor theft or a felony; and the prospective juror is insane—the remaining
challenges for cause are not absolute disqualifications. See Webb v. State, 232
S.W.3d 109, 112 (Tex. Crim. App. 2007) (addressing article 35.16(a)(7), concerning
prospective juror’s service on grand jury that returned indictment against defendant);
Vera v. State, 496 S.W.3d 293, 295 (Tex. App.—San Antonio 2016, pet. ref’d)
(“With the exception of three specific grounds for disqualification, the
disqualification grounds listed in article 35.16 may be waived.”); see also TEX. CODE
CRIM. PROC. ANN. art. 35.19 (entitled “absolute disqualification” and providing that,
even if parties agree, prospective juror may not be impaneled if subject to second,
third, or fourth challenges listed in article 35.16). “All grounds for challenge for
13
cause may be forfeited,” and a challenge for cause “is forfeited if not made.” Webb,
232 S.W.3d at 112. A party’s failure to question the prospective jurors on that subject
“constitutes a forfeiture of the right to complain thereafter.” Id.; Ex parte Perez, 525
S.W.3d 325, 339 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (stating that
“challenge to a juror based on a non-absolute disqualification, such as county
residence, is a forfeitable right, not a waivable right” and all party has to do forfeit
such challenge is “remain silent”); Vera, 496 S.W.3d at 295 (“[W]ith three
exceptions not applicable here, the failure to make a timely objection to a juror’s
qualifications under article 35.16 waives the right to challenge those
qualifications.”).
The constitutional right to an impartial jury “includes adequate voir dire to
identify unqualified jurors.” Franklin, 138 S.W.3d at 354; Armstrong, 897 S.W.2d
at 363 (“The voir dire process is designed to insure, to the fullest extent possible,
that an intelligent, alert, disinterested, impartial, and truthful jury will perform the
duty assigned to it.”). In situations in which a juror withholds material information
during voir dire, “the parties are denied the opportunity to exercise their challenges,
thus hampering their selection of a disinterested and impartial jury.” Franklin, 138
S.W.3d at 354 (quoting Salazar v. State, 562 S.W.2d 480, 482 (Tex. Crim. App.
1978)); Armstrong, 897 S.W.2d at 363. “[I]t is not necessary that the concealed
information show actual bias; just that it has a tendency to show bias.” Franklin, 138
14
S.W.3d at 356; Barnett v. State, 420 S.W.3d 188, 192 (Tex. App.—Amarillo 2013,
no pet.) (“To be material, the information withheld must be of a type suggesting
potential for bias or prejudice.”).
The Court of Criminal Appeals has also held, however, that defense 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 and truthful.” Armstrong,
897 S.W.2d at 363–64; Canada v. State, 547 S.W.3d 4, 25 (Tex. App.—Austin 2017,
no pet.); see Gonzales v. State, 3 S.W.3d 915, 917 (Tex. Crim. App. 1999) (stating
that counsel must “ask specific questions, not rely on broad ones, to satisfy this
obligation” and that counsel must ask follow-up questions after discovering potential
bias); Ashton v. State, 526 S.W.3d 490, 497 (Tex. App.—Houston [1st Dist.] 2017,
pet. ref’d) (“[D]efense counsel bears the burden to ask questions to determine a
juror’s potential bias.”). The Court of Criminal Appeals has stated:
It is incumbent upon counsel to specifically ask questions which will
determine whether they have a right to challenge the veniremember.
The jury panel does not know the statutory challenges for cause and
thus the prospective jurors likely do not know what the parties are
trying to determine during voir dire. It is counsel’s responsibility to ask
questions specific enough to elicit the answers they require.
Webb, 232 S.W.3d at 113.
If defense counsel does not ask such questions, “the material information
which a juror fails to disclose is not really ‘withheld.’” Armstrong, 897 S.W.2d at
364; see Franklin, 138 S.W.3d at 355–56 (“Under Texas law, the defendant must
15
show that the juror withheld material information during voir dire, and the
information is withheld despite due diligence exercised by the defendant.”)
(emphasis added); Gonzales, 3 S.W.3d at 916–17 (noting that error occurs where “a
prejudiced or biased juror is selected without fault or lack of diligence on the part of
defense counsel, such counsel acting in good faith on the juror’s responses and
having no knowledge of their inaccuracy”); White v. State, 181 S.W.3d 514, 518
(Tex. App.—Texarkana 2005) (considering whether defense counsel “used due
diligence in eliciting the withheld information omitted by the juror or jurors during
voir dire”), aff’d, 225 S.W.3d 571 (Tex. Crim. App. 2007).
There is a “necessity” that defense counsel “ask during voir dire all of the
relevant statutory questions to determine whether a juror may be disqualified.”
Webb, 232 S.W.3d at 113; Stillwell v. State, 466 S.W.3d 908, 913 (Tex. App.—Fort
Worth 2015, no pet.) (stating that attorneys have duty “to determine capability or
fitness of the jurors during voir dire”). During voir dire, counsel should specifically
cover all of the grounds for challenges for cause listed in article 35.16 before counsel
“could be held to have used due diligence in determining the applicable challenges
for cause.” Webb, 232 S.W.3d at 113–14; Ashton, 526 S.W.3d at 497 (“Defense
counsel must also ask specific questions, and cannot rely on broad ones, to satisfy
this due diligence obligation.”).
16
B. Analysis
1. Violation of Fifth and Sixth Amendments
In his first and third issues, appellant argues that the prosecutor’s failure to
disclose that his brother-in-law was a prospective juror violates his due process
rights under the Fifth Amendment. In his third issue, he argues that this failure by
the prosecutor and the trial judge’s failure to disclose that her brother was a
prospective juror undermined public confidence in judicial proceedings and violated
his due process rights and his Sixth Amendment right to a fair and impartial jury.
During voir dire in this case, defense counsel asked the venire if anyone knew
himself, his co-counsel, or appellant. One venireperson raised his hand and stated
that he knew defense counsel in a “business, personal” capacity and that they had
known each other for several years. Defense counsel asked if the venireperson could
“set that aside and judge this trial fairly,” and the venireperson responded that he
could. Later, defense counsel asked, “Does anyone’s gut tell you right now, this guy
[appellant], he’s guilty?” A venireperson responded yes, and defense counsel asked
whether that feeling was because appellant had prior DWI convictions. The
venireperson responded, “Well, that and, you know, several years ago, like in a bar,
out on a date, I guess you could call it, I’ve seen him around many times.” The trial
judge instructed the venireperson not to say any personal experiences that she had
had with appellant and asked whether the venireperson could “put that aside and
17
judge this case only on what’s presented to you in the courtroom?” This venireperson
responded that she could not, and the trial judge granted a challenge for cause against
this venireperson. Defense counsel did not ask if any of the prospective jurors knew
or were related to either of the prosecutors or to the trial judge. Similarly, neither the
prosecutor nor the trial judge asked these questions.
Defense counsel asked the venire whether anyone knew the defendant and
either of the defense attorneys, but no one involved in conducting voir dire—the trial
judge, the prosecutor, or defense counsel—asked whether anyone knew or was
related to the prosecutor or the judge. Under article 35.16(c), defense counsel may
make a challenge for cause on the basis that a venireperson is “related within the
third degree of consanguinity or affinity . . . to any prosecutor in the case.” TEX.
CODE CRIM. PROC. ANN. art. 35.16(c). This potential challenge for cause is not,
however, one of the three challenges that are considered “absolute disqualifications”
under the Code of Criminal Procedure. See id. (“No juror shall be impaneled when
it appears that the juror is subject to the second, third or fourth grounds of challenge
for cause, set forth above, although both parties may consent.”); id. art. 35.19 (stating
same). Article 35.16 expressly states that “[a]ll other grounds for challenge may be
waived by the party or parties in whose favor such grounds of challenge exist.” Id.
art. 35.16(a); Webb, 232 S.W.3d at 112.
18
The Court of Criminal Appeals and the intermediate appellate courts have
repeatedly held that defense counsel has an obligation to ask specific questions of
the venire to determine whether counsel has a right to challenge a prospective juror
for cause. Webb, 232 S.W.3d at 112–13; Gonzales, 3 S.W.3d at 917; Armstrong, 897
S.W.2d at 363–64; Canada, 547 S.W.3d at 25; Ashton, 526 S.W.3d at 497; Stillwell,
466 S.W.3d at 913. Counsel should ask “all of the relevant statutory questions [under
article 35.16] to determine whether a juror may be disqualified.” Webb, 232 S.W.3d
at 113. If counsel does not ask these questions, “the material information which a
juror fails to disclose is not really ‘withheld.’” Armstrong, 897 S.W.2d at 364;
Ashton, 526 S.W.3d at 497; see Gonzales, 3 S.W.3d at 917 (“We have consistently
held there is no error where counsel has not met that obligation.”). Challenges for
cause may be forfeited, and “[f]ailure to question the jurors on that subject
constitutes a forfeiture of the right to complain thereafter.” Webb, 232 S.W.3d at
112.
Here, although defense counsel asked the venire if anyone knew himself, his
co-counsel, or appellant, he did not ask whether anyone knew or was related to either
of the prosecutors or the trial judge. This information—relevant to a permissible
statutory challenge for cause—was readily obtainable during voir dire, but defense
counsel never asked questions designed to elicit this information. Because defense
counsel did not ask whether anyone knew or was related to the prosecutors or the
19
trial judge, the two jurors challenged in appellant’s motion for new trial and on
appeal did not withhold material information during voir dire. See Armstrong, 897
S.W.2d at 363–64; Ashton, 526 S.W.3d at 498 (holding, when defense counsel asked
whether prospective jurors had close family member involved with law enforcement
but did not ask whether prospective jurors had non-familial relationships with law
enforcement officers, counsel “did not ask questions that were calculated to uncover
the jurors’ non-familial relationships with” detective, and two prospective jurors did
not withhold information during voir dire); see also Webb, 232 S.W.3d at 113 (“It is
counsel’s responsibility to ask questions specific enough to elicit the answers they
require.”). Because defense counsel did not ask the venire whether anyone knew or
was related to the prosecutors and the trial judge, counsel forfeited that challenge for
cause. See Webb, 232 S.W.3d at 112.
Appellant—although not citing or discussing Webb, Armstrong, or any other
case addressing defense counsel’s obligation to ask questions during voir dire
designed to elicit information relevant to challenges for cause—argues that close
relatives of the prosecutor have been statutorily determined to be “incapable or unfit
to serve on the jury” and that the harm from the prosecutor’s failure to disclose that
his brother-in-law was on the venire “is built-in, per se, or automatic when the
prosecutor’s undisclosed relationship is familial and within the third degree of
affinity or consanguinity.”
20
Appellant correctly states that article 35.16(a) begins by providing that “[a]
challenge for cause is an objection made to a particular juror, alleging some fact
which renders the juror incapable or unfit to serve on the jury” and that article
35.16(c) provides that a defendant may challenge a prospective juror for cause when
that person is related within the third degree of consanguinity or affinity to a
prosecutor in the case. TEX. CODE CRIM. PROC. ANN. art. 35.16(a), (c). However,
appellant fails to recognize that, with the exception of three challenges for cause not
applicable in this case, all other grounds for challenges for cause, including those
listed in article 35.16(c), “may be waived by the party or parties in whose favor such
grounds of challenge exist.”4 Id. art. 35.16(a); Webb, 232 S.W.3d at 112. The
Legislature provided that a person related within the third degree of consanguinity
or affinity to a prosecutor in the case is subject to a challenge for cause, but the
Legislature also provided that this challenge for cause is one that can be forfeited.
The concern that appellant raises regarding close relatives of the prosecutor
and the trial judge serving on the jury is a valid one, and we do not condone the
silence of the prosecutor or the judge in this case. The better practice is for trial
4
We note, as the State points out, that even if an “absolutely disqualified” juror serves
on a jury, reversal of the conviction on appeal is not automatic unless the defendant
“raises the disqualification before the verdict is entered.” TEX. CODE CRIM. PROC.
ANN. art. 44.46. If the disqualification was not discovered or brought to the trial
court’s attention until after the verdict was entered, the defendant must make “a
showing of significant harm by the service of the disqualified juror” to obtain a
reversal of his conviction. Id.
21
judges, prosecutors, and defense attorneys to be open and candid about the presence
of their close relatives on the venire. However, we cannot ignore binding Court of
Criminal Appeals precedent holding that defense counsel has an obligation during
voir dire to ask questions of the prospective jurors designed to elicit information
relevant to the challenges for cause. See, e.g., Webb, 232 S.W.3d at 112–13;
Gonzales, 3 S.W.3d at 917; Armstrong, 897 S.W.2d at 363–64. The Court of
Criminal Appeals has stated that “the Sixth Amendment right to an impartial jury is
just that—a right,” and “like any other right,” this right “is subject to waiver (or even
forfeiture) by the defendant in the interest of overall trial strategy.” State v. Morales,
253 S.W.3d 686, 697 (Tex. Crim. App. 2008); Delrio v. State, 840 S.W.2d 443, 445–
46 (Tex. Crim. App. 1992) (noting that Court of Criminal Appeals has not held “that
an impartial jury is an inflexible constitutional imperative which cannot be
procedurally defaulted or consciously waived” and stating that right to impartial jury
is “a right of the accused, which must be pressed in some fashion at trial before
reversal of his conviction may be predicated upon its breach” and that court has “no
reason to believe that the right to an impartial jury is not subject to ordinary
adversarial principles, to be invoked, or not, according to the vicissitudes of trial”);
see also Trinidad v. State, 312 S.W.3d 23, 29 n.27 (Tex. Crim. App. 2010) (stating
that in Morales, court “observed that the right to trial by an impartial jury is subject
to forfeiture”); Aguilar v. State, 547 S.W.3d 254, 259 (Tex. App.—San Antonio
22
2017, no pet.) (quoting Morales and stating that defendant “mistakenly
argues . . . that the right to an impartial jury cannot be waived by a defendant”).
Defense counsel in this case did not ask questions relevant to determining
whether any prospective juror knew or was related to the prosecutor or the trial
judge. There is no indication in the record that defense counsel was somehow
prevented from asking these questions to the venire.5 We conclude that appellant
forfeited this challenge for cause.6 See Webb, 232 S.W.3d at 112.
5
Appellant argues that he was “denied essential information by which he could have
intelligently question[ed] jurors, develop[ed] the record, and exercise[d] peremptory
jury strikes and challenges.” As stated above, there is no indication in the record
that defense counsel sought to question the venire about their relationships—
familial or otherwise—with the prosecutors or the trial judge but was prevented
from doing so. The State lodged four objections during defense counsel’s voir dire,
three of which were sustained. On three occasions, the State objected on the basis
that defense counsel had asked an improper commitment question, and on the fourth
occasion, the State made a relevance objection. Defense counsel’s challenged
questions and statements were: (1) whether, during a prospective juror’s prior jury
service, the jury reached a verdict; (2) an observation, building off a statement by a
prospective juror, that “there’s people sitting in jail that all they need to do is come
up with 100 or 200 bucks” for bail; (3) whether, if appellant testifies and swears to
be truthful, the prospective juror would consider appellant credible; and (4) whether,
if the punishment phase becomes necessary, the prospective juror would assess the
minimum punishment for the offense. Appellant was not denied the opportunity to
ask whether any venireperson knew or was related to the prosecutors or the judge;
he never attempted to ask those questions.
6
In an unpublished opinion, the Amarillo Court of Appeals addressed the portion of
article 35.16(c) which provides that a defendant may challenge a prospective juror
for cause on the basis that the juror is related within the third degree of
consanguinity or affinity to “the person injured by the commission of the offense.”
Nunez v. State, No. 07-17-00123-CR, 2018 WL 3977042, at *2–3 (Tex. App.—
Amarillo Aug. 20, 2018, no pet.). In that case, neither attorney asked during voir
dire if the jurors knew the minor complainant or her family. Id. at *3. After the
indictment was read, one juror heard the complainant’s last name and informed the
23
2. Duty to Disclose Under Brady v. Maryland
In his first issue, appellant also argues that the prosecutor had an obligation
under Brady v. Maryland to disclose that his brother-in-law was a member of the
venire.
In Brady, the United States Supreme Court held that “the suppression by the
prosecution of evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution.” 373 U.S. 83, 87 (1963). Brady is violated
when three requirements are satisfied: (1) the State suppressed evidence; (2) the
suppressed evidence is favorable to the defendant; and (3) the suppressed evidence
is material. Ex parte Lalonde, 570 S.W.3d 716, 724 (Tex. Crim. App. 2019); Ex
parte Chaney, 563 S.W.3d 239, 266 (Tex. Crim. App. 2018) (stating that defendant
trial court that she might know the parties. Id. At a hearing outside the presence of
the rest of the jury, the juror was unsure about her exact relationship to the
complainant’s mother, at one point stating that the complainant’s mother was
married to the juror’s cousin, that the complainant’s mother’s husband was the
juror’s first or second cousin, and that the juror’s ex-husband’s mother was the aunt
of the complainant’s mother. Id. at *1. The complainant’s mother stated that her
daughter’s father “is related to” the juror. Id. at *2. The trial court denied the
defendant’s motion for mistrial. Id. The Amarillo Court of Appeals declined to hold
that the trial court “had an obligation to determine the degree of the relationship
between the juror and the complainant,” noting that counsel must ask specific
questions to determine if they have the right to challenge a veniremember for cause
and that the “parties bear the burden to be diligent during voir dire.” Id. The court
held that defense counsel had the burden to establish that his challenge for cause
was proper, which he did not do based on the ambiguous record that did not establish
the relationship between the minor complainant and the juror. Id. at *3.
24
need not request disclosure of Brady evidence “because the State’s duty to disclose
is an affirmative one”). The third element, materiality, incorporates a requirement
that the defendant must be prejudiced by the State’s failure to disclose the favorable
evidence. Lalonde, 570 S.W.3d at 724 (quoting Harm v. State, 183 S.W.3d 403, 406
(Tex. Crim. App. 2006)).
In a Brady analysis, courts have defined “favorable evidence” as “any
evidence that, if disclosed and used effectively, may make a difference between
conviction and acquittal and includes both exculpatory and impeachment evidence.”
Id. (quoting Harm, 183 S.W.3d at 408). Evidence is material only if there is a
reasonable probability—defined as “a probability sufficient to undermine
confidence in the outcome”—that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different. Id. (quoting United States v.
Bagley, 473 U.S. 667, 682 (1985)). “The mere possibility that the undisclosed
information might have helped the defense or affected the trial’s outcome does not
establish materiality.” Id. at 725. The State does not have a duty to disclose if the
defendant was actually aware of the exculpatory evidence or could have accessed it
from other sources. Pena v. State, 353 S.W.3d 797, 810 (Tex. Crim. App. 2011).
Appellant cites the United State Supreme Court’s decision in Smith v. Phillips,
455 U.S. 209 (1982), for the proposition that a prosecutor’s obligations under Brady
extend to requiring disclosure of information known to the prosecutor about
25
potential jurors. We disagree with appellant’s contention that the Supreme Court
held that a prosecutor has a Brady obligation to disclose information known about
prospective jurors. In Smith, during the defendant’s trial, one of the jurors submitted
an application for a felony investigator position with the district attorney’s office,
and the two attorneys prosecuting the case learned of this application. 455 U.S. at
212. The prosecutors did not inform the trial court or defense counsel during the
trial; instead, the elected district attorney learned of the application after the jury had
returned its verdict convicting the defendant, and the district attorney notified the
trial court and defense counsel. Id. at 213. Upon defense counsel’s motion to set
aside the verdict, the trial court held a hearing and determined that while the juror
was wrong to submit the application during trial, the application “in no way reflected
a premature conclusion as to the [defendant’s] guilt, or prejudice against the
[defendant], or an inability to consider the guilt or innocence of the [respondent]
solely on the evidence.” Id. at 213–14. The defendant sought federal habeas relief,
and the federal district court imputed bias to the juror, reasoning that “the average
man in [the juror’s] position would believe that the verdict of the jury would directly
affect the evaluation of his job application,” and ordered the defendant released. Id.
at 214. The Second Circuit affirmed, holding that the prosecutor’s failure to disclose
the juror’s application denied the defendant due process. Id.
26
The United States Supreme Court disagreed that bias must be imputed to the
juror and cited several previous cases in which the Court had held, when questions
of juror partiality had been raised, that the proper remedy was a hearing to allow the
defendant the opportunity to prove actual bias of the juror. Id. at 215–17. The Court
stated:
These cases demonstrate that due process does not require a new trial
every time a juror has been placed in a potentially compromising
situation. Were that the rule, few trials would be constitutionally
acceptable. The safeguards of juror impartiality, such as voir dire and
protective instructions from the trial judge, are not infallible; it is
virtually impossible to shield jurors from every contact or influence that
might theoretically affect their vote. Due process means a jury capable
and willing to decide the case solely on the evidence before it, and a
trial judge ever watchful to prevent prejudicial occurrences and to
determine the effect of such occurrences when they happen. Such
determinations may properly be made at a hearing like that . . . held in
this case.
Id. at 217. The Court also stated that “the touchstone of due process analysis in cases
of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of
the prosecutor,” and it cited Brady as an example, noting that, in Brady, the
defendant’s trial “complied with the requirements of due process despite the
prosecutor’s wrongful suppression” of an admission that was relevant to punishment
but not the defendant’s guilt. Id. at 219. The Supreme Court did not hold in Smith
27
that a prosecutor has a duty under Brady to disclose information that it knows about
prospective jurors.7
We agree with the State that Brady—which applies to the disclosure of
exculpatory and impeachment evidence that is material and favorable to the
accused—is not applicable in this case involving the relationships between a juror
and one of the prosecutors and a juror and the trial judge. See Armstrong, 897 S.W.2d
at 365 (“This Court has previously held that the State has no obligation to furnish
defense counsel with information on prospective jurors where the information was
readily available to the defense on voir dire.”). We decline to extend a prosecutor’s
obligations under Brady to the factual circumstances present in this case.
We overrule appellant’s first issue to the extent he argues that the prosecutor’s
conduct in this case violated Brady v. Maryland.
3. Duty to Disclose Under Michael Morton Act
In his second issue, appellant argues that the prosecutor had a duty under the
Michael Morton Act to disclose that his brother-in-law was a member of the venire.
7
In Williams v. Taylor, 529 U.S. 420, 440–41 (2000), a prospective juror failed to
disclose that she had previously been married to one of the witnesses, a deputy
sheriff, and the prosecutor failed to disclose that he had represented the juror in her
divorce from the witness. The Supreme Court reaffirmed that in cases involving
juror partiality and the prosecutor’s failure to disclose connections with prospective
jurors, the remedy is an evidentiary hearing to allow the defendant the opportunity
to establish actual bias on the part of the juror or that the prosecutor’s “silence so
infected the trial as to deny due process.” Id. at 442. The Supreme Court did not
hold that the prosecutor had an obligation under Brady to disclose information about
prospective jurors.
28
The Michael Morton Act—Code of Criminal Procedure article 39.14—
governs discovery in criminal cases. It provides, in relevant part:
(a) [A]s soon as practicable after receiving a timely request from the
defendant the state shall produce and permit the inspection and
the electronic duplication, copying, and photographing, by or on
behalf of the defendant, of any offense reports, any designated
documents, papers, written or recorded statements of the
defendant or a witness, including witness statements of law
enforcement officers but not including the work product of
counsel for the state in the case and their investigators and their
notes or report, or any designated books, accounts, letters,
photographs, or objects or other tangible things not otherwise
privileged that constitute or contain evidence material to any
matter involved in the action and that are in the possession,
custody, or control of the state or any person under contract with
the state. . . .
....
(h) Notwithstanding any other provision of this article, the state shall
disclose to the defendant any exculpatory, impeachment, or
mitigating document, item, or information in the possession,
custody, or control of the state that tends to negate the guilt of
the defendant or would tend to reduce the punishment for the
offense charged.
....
(k) If at any time before, during, or after trial the state discovers any
additional document, item, or information required to be
disclosed under Subsection (h), the state shall promptly disclose
the existence of the document, item, or information to the
defendant or to the court.
TEX. CODE CRIM. PROC. ANN. art. 39.14. “Materiality for purposes of Article
39.14(a) means that ‘there is a reasonable probability that had the evidence been
disclosed, the outcome of the trial would have been different.’” Watkins v. State, 554
29
S.W.3d 819, 822 (Tex. App.—Waco 2018, pet. granted); see Carrera v. State, 554
S.W.3d 800, 802 (Tex. App.—Waco 2018, no pet.) (“Evidence must be
‘indispensable to the State’s case’ or must provide a reasonable probability that its
production would result in a different outcome to be considered material and subject
to mandatory disclosure under Article 39.14(a).”).
Appellant argues that the prosecutor was required to disclose his familial
relationship to a prospective juror under article 39.14 because that statute permits
discovery of anything “that constitute[s] or contain[s] evidence material to any
matter involved in the action,” and information concerning a familial relationship
between a prosecutor and a prospective juror is material to jury selection. The State,
however, argues that the information at issue in this case—information that a
prospective juror was the prosecutor’s brother in law—does not constitute the type
of information that article 39.14 was designed to require a prosecutor to make
available to the defense. We agree with the State.
Article 39.14(a) requires the State, upon request by the defense, to “produce
and permit the inspection and the electronic duplication, copying, and
photographing, by or on behalf of the defendant” of a list of items, including:
(1) offense reports; (2) any designated documents, papers, written or recorded
statements of the defendant or a witness, including witness statements of law
enforcement officers; and (3) any designated books, accounts, letters, photographs,
30
or objects, or other tangible things not otherwise privileged. See TEX. CODE CRIM.
PROC. ANN. art. 39.14(a). Information that the prosecutor is related to a prospective
juror does not fit into any of the categories required to be produced by the State
under article 39.14(a).
To the extent appellant argues that the information at issue in this case falls
within the phrase “evidence material to any matter,” we agree with the State that this
phrase is limited by the immediately preceding phrase of “objects or tangible things
not otherwise privileged.” See Shipp v. State, 331 S.W.3d 433, 437 (Tex. Crim. App.
2011) (stating that under ejusdem generis canon of statutory construction, “[w]here
general words follow specific words in a statutory enumeration, the general words
are construed to embrace only objects similar in nature to those objects enumerated
by the preceding specific words”).
We hold that article 39.14(a) does not obligate the State to disclose that a
prosecutor has a familial relationship with a prospective juror.
We overrule appellant’s second issue.
4. Whether Prosecutor and Trial Judge Had a Duty to Disclose Under
Other Law
In his third issue, appellant argues that the prosecutor’s and the trial judge’s
withholding of information concerning their familial relationship to two jurors
“demeans public confidence in judicial proceedings” and violates his right to a fair
and impartial jury. In light of our holding that appellant forfeited his challenges for
31
cause on this basis because he did not ask questions during voir dire concerning the
relationships between the prospective jurors and the prosecutors and the trial judge,
we construe this issue as an argument that the prosecutor and the trial judge have an
independent and affirmative duty to disclose this information to defense counsel.
The Court of Criminal Appeals addressed a similar question in Armstrong,
which involved a close friendship between the prospective juror and the prosecutor.
In that case, the trial court identified the prosecutor—the county attorney—and three
specific members of his staff and asked whether any prospective juror was “so well
connected with them or acquainted or associated with them that it might affect your
verdict?” See 897 S.W.2d at 362. The trial court also asked whether any prospective
juror had “any special connection with the County Attorney’s office, perhaps a close
friend in the office, secretary, investigator or the like?” Id. No veniremember
answered affirmatively. At the motion for new trial stage, Armstrong presented
undisputed evidence that one prospective juror, who served on the jury, had known
the county attorney for nearly thirty years and considered him a friend; that her
husband and the county attorney had been the best man at each other’s weddings;
and that her husband had served as the county attorney’s campaign treasurer during
a prior election and was serving in that position at the time of trial. Id. at 363.
On appeal, Armstrong argued that the county attorney had an affirmative duty
to disclose this information to defense counsel under Rule 3.09 of the Disciplinary
32
Rules of Professional Conduct and Code of Criminal Procedure article 2.01, which
provided that “[i]t shall be the primary duty of all prosecuting attorneys, including
special prosecutors, not to convict, but to see that justice is done.”8 Id. at 365 & n.3.
The Court of Criminal Appeals noted that the intermediate appellate court “was not
convinced that the prosecutor’s conduct . . . was contrary to any disciplinary rule or
to Article 2.01.” Id. The court also noted that the court of appeals “could find no
authority for the proposition that a prosecutor has an affirmative duty to volunteer
information that defense counsel could have easily obtained by questioning the
[jury] panel.” Id. The Court of Criminal Appeals stated that it had previously held
that “the State has no obligation to furnish defense counsel with information on
prospective jurors where the information was readily available to the defense on voir
dire,” and it stated that the court of appeals’ conclusion “is certainly consistent with
these holdings.” Id. at 365–66. The court concluded by stating, “We cannot say the
court of appeals erred to find that there was no prosecutorial misconduct.” Id. at 366.
Appellant cites three out-of-state cases in which a close relative of the trial
judge—two cases involving the judge’s spouse and one case involving the judge’s
8
Rule 3.09, entitled “Special Responsibilities of a Prosecutor,” provides that the
prosecutor in a criminal case shall, among other things, “make timely disclosure to
the defense of all evidence or information known to the prosecutor that tends to
negate the guilt of the accused or mitigates the offense . . . .” TEX. DISCIPLINARY
RULES PROF’L CONDUCT R. 3.09(d), reprinted in TEX. GOV’T CODE ANN., tit. 2,
subtit. G, app. A (Tex. State Bar R. art. X, § 9).
33
mother—ended up sitting on the jury and the convictions were later reversed on
appeal. See State v. Tody, 764 N.W.2d 737 (Wis. 2009), abrogated by State v.
Sellhausen, 809 N.W.2d 14 (Wis. 2012); Elmore v. State, 144 S.W.3d 278 (Ark.
2004); People v. Hartson, 160 A.D.2d 1046 (N.Y. App. Div. 1990) (per curiam); but
see People v. Richardson, — P.3d —, 2018 WL 4017882, at *4–9 (Colo. App. 2018)
(holding that while “it would have been prudent” for trial judge to excuse his wife
as veniremember, her service on jury did not result in “fundamental unfairness,” and
judge’s error in allowing her to serve was not “so egregious that it requires reversal
under the plain error standard”).
In each of the cases in which the appellate courts reversed the defendant’s
convictions, defense counsel was aware during voir dire that a relative of the trial
judge was on the venire. See Tody, 764 N.W.2d at 741 (trial court asked
veniremember if she had “a relative employed in the law enforcement related
capacity,” and veniremember responded, “[t]he judge” and that she was the judge’s
mother; trial judge denied defense counsel’s challenge for cause); Elmore, 144
S.W.3d at 279 (defense counsel challenged veniremember for cause on basis that
she was trial judge’s wife, but judge refused to strike, stating, “if she’s not qualified,
you’ll need to show it”); Hartson, 160 A.D.2d at 1047 (trial judge’s wife served as
juror without challenge for cause “notwithstanding full disclosure of her relationship
to” trial judge). Thus, none of these cases hold that the trial judge had an affirmative
34
duty to disclose his familial relationship to the prospective juror, and none of these
cases hold that the failure to disclose this information is a basis for the appellate
court’s decision to reverse.
Moreover, the Court of Criminal Appeals has held on multiple occasions that
challenges for cause are forfeitable and that a defendant may waive his constitutional
right to an impartial jury. See, e.g., Webb, 232 S.W.3d at 112–113; Morales, 253
S.W.3d at 697; Delrio, 840 S.W.2d at 445–46. We therefore decline to impose an
affirmative duty on prosecutors, defense attorneys, and trial judges to sua sponte
disclose that they have a familial relationship with a prospective juror. We hold that
the trial court did not abuse its discretion in denying appellant’s motion for new trial.
We overrule appellant’s third issue.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Goodman, and Countiss.
Justice Goodman, concurring.
Publish. TEX. R. APP. P. 47.2(b).
35