In the Court
of Criminal Appeals of Texas
Derek Jermaine Guillen,
The State of Texas
Appeal from Bell County
The opinion was delivered Per curiam. HOLCOMB, J.,
concurred in the result. JOHNSON, J., dissents.
O P I N I
Appellant was convicted of capital murder in May
1999. Tex. Penal Code Ann. § 19.03(a). Pursuant to the jury's
answers to the special issues set forth in Texas Code of Criminal
Procedure article 37.071 §§ 2(b) and 2(e), the trial judge
sentenced appellant to death. Art. 37.071 § 2(g).
(1) Direct appeal to this Court is automatic. Art.
37.071 § 2(h). Appellant raises two points of error but does not
challenge the sufficiency of the evidence at either stage of trial.
We shall affirm.
VOIR DIRE PROCEDURE
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)
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:
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
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.
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.
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."
counsel then responded:
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.
made no further objections to the procedure followed by the trial
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
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
APPELLANT'S CHALLENGES FOR CAUSE
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.
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
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).
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.
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.
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
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.
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.
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.
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.
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.
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.
reversible error, we affirm the judgment of the trial court.
June 18, 2003
1. Unless otherwise
indicated all future references to Articles refer to the Code of
2. Challenges for cause were
primarily made during the individual questioning of the
venirepersons with each potential juror passed first to the State
and then to the defense.
3. 614 S.W.2d 420 (Tex. Crim.
4. See Grijalva,
generally; Janecka v. State, 739 S.W.2d 813, 833 (Tex.
Crim. App. 1987); Rocha v. State, 16 S.W.3d 1, 6 (Tex.
Crim. App. 2000).
5. TEX. R. APP. P.
6. Likewise, the record does
not show that the trial court was otherwise aware of the grounds
for objection from the context.
7. The record reflects that,
after the State and the defense had questioned Drake, the defense
challenged Drake for cause. The trial court denied the challenge
but permitted the defense to conduct further questioning. After
further examination, the defense renewed its challenge and the
challenge was again denied.