No. 73,491

Derek Jermaine Guillen, Appellant
v.
The State of Texas

In his first point of error, appellant asserts that the trial court erroneously directed voir dire be conducted in a manner contrary to the dictates of Article 35.13. According to the record in the instant case, the trial court conducted voir dire in the following manner: first, a panel of prospective jurors gathered in the courtroom and the judge heard qualifications and excuses. The judge then instructed the panel on the general principles and law involved in the case. Next, the judge excused the panel, allotting each panel member a time to return for individual questioning by both sides. Finally, after the individual questioning of all of the panel members was complete, the entire panel re-assembled in the courtroom for further general questioning, the exercise of any additional challenges for cause, and the exercise of all peremptory strikes. ⁽²⁾

Appellant complains that this procedure does not comply with Article 35.13, as this Court has interpreted it in Grijalva v. State ⁽³⁾ and its progeny, which require the parties to exercise any peremptory challenges at the time a particular prospective juror has been qualified. ⁽⁴⁾ As a threshold question, we must determine whether appellant preserved error. The subject was broached by defense counsel at trial as follows:

Well, Your Honor, we do have another one related to the voir dire, venire situation and that is I believe that was asking co-counsel to be given a copy of the defendant's motion for individual voir dire examination.

Ms. Young and I have just - frankly are just much more comfortable with the idea of doing individual voir dire. I understand the Court can do it whatever way the Court wants to, but it is our request that the Court allow us to do individual voir dire primarily for the purposes of we believe that we would be more effective assistance of counsel to our client if we did individual voir dire related to the use of peremptory strikes and challenges for cause. And frankly, I guess it's a way that I've done it in capital cases in the past and I'm just much more familiar with that way and more comfortable with it and we would believe it would help us be more effective assistance to our client specifically as it relates to peremptory challenges and challenges for cause.

So, I suppose this is something we need to get decided how we're going to do it and so we can prepare for that and so that's a motion I would ask the Court to consider at this time. I don't know if the State has any position on it or not. But it's simply our request that we be allowed to do individual voir dire examination.

(Emphasis added). The State responded that defense counsel was "completely correct" that the trial court had complete discretion over the procedure for exercising peremptory challenges. The State characterized the method eventually used at trial as a "contemporary manner" of exercising peremptories and characterized appellant's proposed method as the "traditional way."

Defense counsel then responded:

Your Honor, just for the record we'd just like to say that we would object to doing it the more contemporary way. I'm 50 and I'm not very contemporary and we're requesting that this individual voir dire be chosen. Individual, more traditional individual voir dire approach related to capital murder cases. We think it would help us be more effective for our client and we just want, you know, put that on the record.

Appellant made no further objections to the procedure followed by the trial court.

To preserve error, a party must, among other things, make a "request, objection, or motion" that "stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context." ⁽⁵⁾ Even if we assume that appellant made an objection and obtained a ruling on that objection, he has failed to preserve error because the objection does not state the grounds for objection with sufficient specificity. Appellant failed to alert the trial court to any legal requirement imposing on the trial court a duty to conduct the exercise of peremptory challenges in a particular fashion. Not only did he fail to cite Article 35.13, Grijalva, or any other legal authority, but he failed to inform the trial court that there was any requirement to follow the procedure he requested. On the contrary, appellant told the trial court that the trial court could do whatever it wanted. He posed the objection as a preference rather than as based on a legal requirement. ⁽⁶⁾ Consequently, appellant has failed to preserve error.

Appellant also contends in his first point of error that the trial court erred in denying his motion for new trial without a hearing, thereby depriving him of the opportunity to show the harm he suffered from the trial court's improper method of jury selection. Because appellant failed to preserve error, there is no occasion to determine whether the alleged error is harmful, and thus the trial court did not err in overruling appellant's motion for new trial without a hearing. See Tex. R. App. P. 21.3 (grounds for a new trial in criminal cases). Point of error number one is overruled.

Appellant complains in his second point of error that the trial court erred in denying his challenges for cause to nine veniremembers. However, appellant specifically identifies only two of these nine. Hence, we shall review only these two.

To preserve error on denied challenges for cause, an appellant must demonstrate on the record that he asserted a clear and specific challenge for cause, that he used a peremptory challenge on the complained-of venireperson, that all his peremptory challenges were exhausted, that his request for additional strikes was denied, and that an objectionable juror sat on the jury. Green v. State, 934 S.W.2d 92, 105 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1200 (1997). The record in the instant case shows that appellant exhausted all fifteen of his peremptory challenges, requested and received an additional challenge, used that challenge, and again requested but was denied any further challenges. Appellant then objected to the seating of the twelfth juror. Therefore, appellant has preserved these points for our review.

When the trial judge errs in overruling a challenge for cause against a venireperson, the defendant is harmed if he uses a peremptory strike to remove the venireperson and thereafter suffers a detriment from the loss of the strike. Demouchette v. State, 731 S.W.2d 75, 83 (Tex. Crim. App. 1986), cert. denied, 482 U.S. 920 (1987). Because the record reflects that appellant received an extra peremptory challenge in addition to the fifteen he was granted by statute, appellant can demonstrate harm and, thus, reversible error, only by showing that both complained-of challenges were erroneously denied. Penry v. State, 903 S.W.2d 715, 732 (Tex. Crim. App.), cert. denied, 516 U.S. 977 (1995); Martinez v. State, 763 S.W.2d 413, 425 (Tex. Crim. App. 1988), cert. denied, 512 U.S. 1246 (1994).

When reviewing a trial court's decision to grant or deny a challenge for cause we look at the entire record to determine if there is sufficient evidence to support the court's determination. Patrick v. State, 906 S.W.2d 481, 488 (Tex. Crim. App. 1995), cert. denied, 517 U.S. 1106 (1996). Great deference is given to the trial court's decision because the trial judge is present to observe the demeanor of the venireperson and to listen to his tone of voice. Id.

Appellant may properly challenge any prospective juror who has a bias or prejudice against any phase of the law upon which he is entitled to rely. Art. 35.16(c)(2). The test is whether the bias or prejudice would substantially impair the prospective juror's ability to carry out his oath and instructions in accordance with law. Patrick, 906 S.W.2d at 489.

In this point of error, appellant first complains about prospective juror J. D. Drake. ⁽⁷⁾ Specifically, he complains that the trial court erred in denying his challenge to Drake based upon the fact that the prospective juror indicated that he would automatically answer the future dangerousness issue "yes" based upon his finding of guilt. Article 37.071 § 2(c), requires the State to prove the future dangerousness and "anti-parties" special issues beyond a reasonable doubt. Any veniremember who would automatically answer either of those special issues in the affirmative, or who would place the burden of proof on the defense, is challengeable for cause under Article 35.16(c)(2) for having a bias or prejudice against a law applicable to the case upon which the defense is entitled to rely. Ladd v. State, 3 S.W.3d 547 (Tex. Crim. App. 1999), cert. denied, 120 S.Ct. 1680 (2000). We review the entirety of Drake's voir dire to determine whether there is sufficient evidence to support the court's determination.

Looking at the record, we note that the prosecutor began Drake's individual voir dire by explaining the process followed at trial and the fact that the State bore the burden of proof. The prosecutor then explained that the procedure at punishment was not to have the jury vote for life or death, but rather to pose to the jurors two questions which they were to answer based upon the evidence presented at trial. The prosecutor further explained that the court would then assess punishment based upon the jury's answers to those questions.

After the prosecutor gave an initial explanation as to the future dangerousness issue, Drake made the following comment:

I'm with you but I think I'm losing it because I'm having difficulty thinking how that if, if you prove to me beyond a reasonable doubt that he was guilty or if the person was guilty, how I would get to this point because in my mind I think I'm already prejudged that the probability of that happening again would be likely and so mine probably [sic] always be yes.

In response to this comment, the prosecutor told Drake that while he could base the answer to the future dangerousness issue purely on the evidence presented at the guilt stage of trial, Drake needed to consider all of the evidence presented at the punishment stage of trial as well. The prosecutor then gave Drake a hypothetical fact situation to illustrate scenarios in which the future dangerousness issue might be answered in the negative. After listening to the hypothetical situation, Drake indicated that he could see that there might be instances in which the future dangerousness question should be answered in the negative. Drake also reiterated his belief that the death penalty was appropriate in certain cases, but that there were also situations where he did not believe that it was appropriate.

During defense counsel's questioning, Drake expressed his feeling that in particular fact situations, such as with a premeditated murder, he felt that the death penalty was the appropriate punishment. Indeed, he noted on his questionnaire that, "Anyone who would take another human being's life in a premeditated manner is a sick animal and should be put to sleep." However, he also continued to assert that he would listen to all of the evidence before making his decision.

Although this exchange shows that Drake had very strong feelings in favor of the death penalty in particular circumstances, it did not establish that he would automatically answer the future dangerousness issue in the affirmative in every case. Hence, appellant has failed to show that Drake's views would have substantially impaired his ability to carry out his oath and instructions in accordance with the law. Given the totality of the voir dire, the judge was within her discretion in determining that the venireperson was not challengeable for cause.

Because appellant has failed to show that both of his complained-of challenges for cause were erroneously denied, he cannot show harm on appeal. Penry and Martinez, both supra. Point of error two is overruled.

Finding no reversible error, we affirm the judgment of the trial court.

Delivered: June 18, 2003

En banc

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