Barfield v. State

Full title: PAUL ALFORD BARFIELD, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Mar 5, 2007

No. 05-06-00609-CR, No. 05-06-00610-CR (Tex. App. Mar. 5, 2007)

Opinion

No. 05-06-00609-CR, No. 05-06-00610-CR

Opinion issued March 5, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.

On Appeal from the 380th Judicial District Court Collin County, Texas Trial Court Cause Nos. 380-80602-05 380-80603-05

Before Chief Justice THOMAS and Justices RICHTER and LAGARDE ¹

1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.

OPINION

Opinion By Justice, LAGARDE

In the appeal of these cases, we are presented with a single issue: whether the trial court erred in failing to grant appellant's motion for mistrial after it was revealed a juror had been told by another prospective juror she thought appellant was registered on a sex offender website. Concluding any presumption of harm was sufficiently rebutted, we affirm. Appellant Paul Alford Barfield was indicted for two counts of aggravated sexual assault of a child.² In a single trial on all counts, appellant pleaded not guilty before a jury. The jury found appellant guilty of two aggravated sexual assaults. In each case, appellant elected to have the trial court assess his punishment. After hearing appellant's pleas of true to the enhancement paragraphs and evidence on punishment, the trial court assessed appellant's punishment at thirty years in prison in each case. Appellant appealed both judgments.

2 The jury was also charged on the lesser-included offense of indecency with a child.

Background

K.K. was nine years old when her mother married appellant. Soon thereafter, appellant began touching K.K. inappropriately. Appellant fondled K.K.'s breasts and vagina almost every night while her mother was out of the home at work. When K.K. was in the fifth grade, appellant undressed her, laid her on his bed, and sexually assaulted her, putting his penis inside her vagina. K.K. told her mother of the abuse; however, her mother did not believe K.K. K.K. finally told her best friend, whose mother called the police. On appeal, appellant contends the trial court reversibly erred by denying his motion for a mistrial after it was revealed a juror had been told by another prospective juror appellant was registered on a sex offender website.³ The State responds no reversible error is shown because the presumption of harm resulting from such conversation was rebutted by the juror's unequivocal testimony she would not consider the information or share it with fellow jurors.

Procedural Context

After the attorneys concluded their voir dire examination of the venire, three prospective jurors were asked to remain in the courtroom. The remainder of the prospective jurors, including the later-challenged juror, left the courtroom. The three prospective jurors were questioned individually and then excused from the courtroom to join the remainder of the panel who had earlier been excused. After a brief recess, the venire returned into the courtroom and the names of the twelve jurors not stricken were called and seated in the jury box. Among that number was the juror who was later challenged. The trial judge thanked the remaining members of the venire for their service, "finally excused" them, and they left the courtroom. The following then occurred: THE COURT: Pleased [sic] be seated. At this time I would ask the members of this jury to please raise your right hands and I'll swear you in as jurors. (Jury sworn) After swearing the jury, the trial judge instructed the jury, in part, "[s]o the reason I tell you that now is you haven't heard any evidence so there's really nothing to discuss but it would be a good idea not to even discuss what you do know about the case, in my opinion." The trial court then recessed until the next morning when the following occurred in open court before opening statements were made to the jury:

THE COURT: This is Cause No. 380-80602 and 80603, State of Texas versus Paul Barfield. For the record, the Defendant and his attorney are present, as are the attorneys for the State, and something has come up and I think I can say what has been told to me so far.

The jury was picked yesterday and in fact sworn, and Mr. Shapiro's [defense counsel's] office received a phone call from somebody who appears to have been named Susan, and Susan says that one of the jurors, she describes as a tall, black woman, and there's only one tall, black woman on the jury, and she was alleged to have said that she had looked up Mr. Barfield on some sex offender site or something like that, and in fact, Mr. Shapiro, I'd better ask you to relate what you understand.

MR. SHAPIRO: The conversation to my paralegal was that I overheard a conversation — "my name is Susan. I overheard a conversation involving the Barfield case. A tall black woman, I overheard her saying to another person that she looked up Paul Barfield on a sex offender registration web site. Then that was the extent of what she told her she said, and then she said I should have called you earlier but I'm calling you now because it might affect this case.

THE COURT: You know, it just occurred to me, there were two other black women on the venire and so I wonder if there's any possibility that the conversation came from one of those two other black women?

MR. SHAPIRO: I have no idea.

THE COURT: Me neither.

MR. SHAPIRO: All I know is that was the conversation, and we have a tall black lady on our jury.

THE COURT: Billy, what's this juror's name?

THE BAILIFF: I don't know.

MR. SHAPIRO: I can tell you. She's No. 20 something, isn't she?

THE COURT: I'll tell you in a second here. Let's see Rose Wright, Rose Melita Wright.

THE COURT: She's No. 24.

MR. SHAPIRO: That's correct.

THE COURT: Let me look at her questionnaire.

THE COURT: Rose Melita Wright, 40 years old, black, analyst with Data/Broad. Spouse works at L.A. Fitness, she has three children. I'm assuming it's Rose Melita Wright.

MR. SHAPIRO: If she's on the jury, that's her.

THE COURT: Yeah, she is.

MR. SHAPIRO: She's an analyst with a computer — a technology company. Does that sound right?

THE COURT: Shall we ask her to step in?

MR. SHAPIRO: Yes, Your Honor.

THE COURT: Let's ask her to step in and I'll go ahead and conduct whatever I can find out and if you guys want to ask anything too, just ask whatever you want to ask.

(Juror Wright enters courtroom)

THE COURT: Yes, ma'am. Could you come on in. Let me ask you to take a seat in the jury box right in that first chair. Ma'am are you Rose Melita Wright?

JUROR: Yes, I am.

THE COURT: Ma'am, I received some information that you had had a conversation with one of the other people on the venire yesterday, and it may not be you, but I think that it might be you, and the conversation was supposed to have been "I looked up Paul Barfield on a website." Was that you?

JUROR WRIGHT: One of the other ladies told me she thought — she thought — she thinks she's seen him on a web page. That's what she said.

THE COURT: Do you know who the lady was?

JUROR WRIGHT: She was really short, blond. She was with the lady in the pink.

THE COURT: Oh, okay.

JUROR WRIGHT: I don't know her name. She just walked up and started talking to me.

THE COURT: I'm sorry, I got the information that you — but you just heard some other lady say that?

JUROR WRIGHT: Well, no, she said it to me.

THE COURT: Oh, she said it to you?

JUROR WRIGHT: Yeah.

THE COURT: And she was in pink and she was blond?

JUROR WRIGHT: Well, no, it was the pink lady and the blond lady. Both of them sat there and said that they go on that web page all the time, and that they think that they have seen him before. That's what they said.

THE COURT: I understand that's an impossibility.

JUROR WRIGHT: Pardon me?

THE COURT: I understand that's an impossibility.

JUROR WRIGHT: But that's exactly what they told me.

THE COURT: I'm sorry, but the information I got was that you might have been the one who said it. But okay. That's great. Let's see. Would anybody like to ask Ms. Wright anything?

MR. SHAPIRO: Ms. Wright — I'd like to ask her . . .

THE COURT: Sure.

MR. SHAPIRO: When was it — when did this conversation take place?

JUROR WRIGHT: It was the last break that we had before we came back in here.

MR. SHAPIRO: After I had done my part of the voir dire.

JUROR WRIGHT: Before we chose the twelve.

MR. SHAPIRO: So while we were striking our lists the, so before you would have had an opportunity to tell anybody that?

JUROR WRIGHT: Pardon me?

MR. SHAPIRO: Remember when I asked you a question, the last question I said is there any reason any of you can think of that you couldn't be basically a fair and impartial juror if you were selected in this case. Do you remember that conversation to that question?

JUROR WRIGHT: Yes, I do.

MR. SHAPIRO: And certainly if somebody had told you that Mr. Barfield was on the sex offender registration website, it might affect your ability to be a fair and impartial juror?

JUROR WRIGHT: That was after.

MR. SHAPIRO: I understand, but had you known that before, it might have affected your answers to some of the questions, would it not?

JUROR WRIGHT: Of course, I would have.

MR. SHAPIRO: You would have told me that?

JUROR WRIGHT: I would have mentioned that.

MR. SHAPIRO: You don't know who else heard that conversation?

JUROR WRIGHT: There was probably three ladies standing there. I don't know. The other lady was kind of around the corner. I was standing here like at this corner, right down the hall here, and she was standing there. She walked around. I was standing there by myself, she walked around and just started talking and she mentioned that, and the other lady said that's what we were talking about.

THE COURT: And did anybody engage in any of those conversations end up on the jury?

JUROR WRIGHT: No, I'm probably the only one out of that conversation.

THE COURT: I think it would be fair to tell you, both sides, I think it's fair to tell Ms. Wright that there isn't any substance to what was said, agreed?

MR. SHAPIRO: Yes, sir.

JUROR WRIGHT: Well, I'm a very fair person. I don't know if I need to mention that or not.

THE COURT: And I think the jury's very fair. I got that feeling about it, and let me ask, does anybody else have any other questions?

MS. VOIRIN [prosecutor]: Just a little bit, Your Honor. Whatever you may have overheard, you understand that that person didn't have any information about this case?

JUROR WRIGHT: I understand.

MS. VOIRIN: And that's not anything that you can consider in your deliberations.

JUROR WRIGHT: I understand that.

MS. VOIRIN: And you're not to share that information with anybody else on the jury and if anybody else brings that up, you make sure you report that to the bailiff.

JUROR WRIGHT: I understand.

THE COURT: Could you do this too? I'm assuming that we're going to go forward with the trial. Would you be good enough not to say anything to the other jurors, even about this little conversation?

JUROR WRIGHT: Oh, definitely, definitely.

THE COURT: I think that would help. Does anybody else have any other questions?

MR. SHAPIRO: No.

MS. VOIRIN: No.

THE COURT: All right, if you'd go ahead and go on in the jury room.

THE BAILIFF: Your Honor, I was going to take her back out around the front.

THE COURT: Okay, sounds good.

After Juror Wright left the courtroom, the following occurred:

THE COURT: For the record, Ms. Wright has left the courtroom now. Does anybody have anything they want to say or do?

MR. SHAPIRO: Your Honor, I'm going to make a motion and move for a mistrial. I don't think there's any question that this lady has been given information about a Paul Barfield being on a sex offender registration website, and I think regardless of the fact of whether you have instructed her to ignore it, whether you instructed her that it's right or wrong or incorrect, she has been given that information. We don't know — we know that conversation took place out there. We don't know who else heard it, and I just think there's a possibility that this juror has a — is tainted to the effect that she can't be a fair and impartial juror, as much as I like her openness and honesty.

I mean the conversation that we received was that she was having the conversation. She tells it — we know one thing for sure now, the conversation did take place. So we do know that took place. She now says she heard it from someone else but the lady that called us on the telephone says that she was the author of the conversation. I don't know who is right or wrong and who is telling the truth, but I do know that a conversation took place about Mr. Barfield, putting out information that he is on a sex offender registration web site. That's incorrect. That could have a material effect on a deliberation — the jury's deliberations in this case. For that reason we'd ask for a mistrial.

After continued discussion about the effect, if any, on what juror Wright had heard and a brief recess, the trial court denied appellant's motion for a mistrial. At the State's request, the trial court instructed the jury generally and, more specifically, in part:

[A]nything that you hear outside the courtroom is not evidence and cannot be considered by you in deliberating or in deciding this case in any way. Sometimes people come into contact, have incidental contact with people and hear things, and if that has happened in this case and if you've heard anything that you think might be a fact in this case, I specifically instruct you to disregard it and to consider only the evidence that you hear from the witness stand.

Appeal

On appeal, appellant argues the trial court reversibly erred by not granting a mistrial. He further argues that because of the nature of both the allegation and the cases, if he had known Wright had "heard" that appellant's name appeared on a sex offender registration list when she was merely a member of the venire, the defense would have moved to excuse Wright or would have exercised a peremptory challenge against her. Appellant argues Wright confirmed the conversation took place before the jury was selected but after the voir dire questioning, and that he was denied information about the conversation having occurred at a time when simply removing prospective juror Wright would have cured the error. Appellant argues Wright violated the trial court's instructions as the recipient of unauthorized information and compounded the error by failing to report the violation before she was called upon to do so. Appellant argues "it is obvious" the conversation occurred during the voir dire process at a time when it should have been reported, and at a time when easy corrective action could have been taken without the necessity of having a tainted juror serve. Appellant further contends the trial judge's instruction to Wright that appellant was not on a sexual offender list was inadequate.⁴ Appellant argues "there can be no other conclusion" than Wright was tainted to the effect she could not be a fair and impartial juror. Appellant relies primarily on three cases: Salazar v. State, 562 S.W.2d 480, 482 (Tex.Crim.App. 1978); Franklin v. State, 12 S.W.3d 473, 478 (Tex.Crim.App. 2000); and Anderson v. State, 633 S.W.2d 851, 853-55 (Tex.Crim.App. 1982). Relying on those cases, appellant argues "where a juror withholds material information during the voir dire process, the parties are denied the opportunity to exercise their challenges, thus hampering their selection of a disinterested and impartial jury." During the trial in Salazar a juror requested to speak to the judge. The judge conferred with the juror who told the judge he had given false information during voir dire examination concerning his previous involvement in a criminal case. He had in fact been a witness in a criminal case five years prior to that time when he was an eyewitness to a sexual assault on his own daughter by a Mexican-American male and had testified at a previous trial. The defendant was a Mexican-American male charged with indecency with a child. In reversing, the Court held the juror withheld material information, appellant was without fault and he was deprived of his right to peremptorily challenge the juror, which action he asserts he would have taken if the juror had disclosed this fact upon voir dire examination. Salazar, 562 S.W.2d at 482. Here, Wright did not withhold information during voir dire examination, and in fact said if the complained-of comment had occurred before she was questioned she would have answered differently. Moreover, Wright was not the active participant in the conversation — another prospective juror made the comment to Wright. Salazar is factually distinguishable. In Franklin, the State asked during voir dire examination if any of the venire members knew the child victim. No one responded. The venire members were also asked if there was anything about their past experiences that would cause them to be less than fair and impartial. None mentioned knowing the victim. Franklin, 12 S.W.3d at 475. When the State called the victim to the stand, one of the jurors passed a note to the trial judge stating she knew the victim. She had not recognized the name but knew the victim when she saw her. The juror had been the scout troop's assistant leader. The trial court did not allow appellant's counsel to question the juror. Franklin, 12 S.W.3d at 476. Defense counsel argued he would have peremptorily struck the juror had he known of the close relationship between the juror and the victim. Id. The court of criminal appeals found reversible error because the trial court erred in denying appellant the opportunity to ask questions of the juror. Here, appellant's counsel was not so restricted. Franklin is factually distinguishable. In footnote, appellant recognizes Anderson concerned the trial court's refusal to disqualify a juror. The Court of Criminal Appeals stated, "[w]hen 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 a degree that the prospective juror is disqualified and should be excused from service." Anderson, 633 S.W.2d at 853-54.⁵ We read appellant's argument as being, in effect, that Wright was biased as a matter of law. The State responds the trial court's action in denying the mistrial was proper because any presumptive harm was rebutted. The State relies primarily on Quinn, Robinson, and Thomas in arguing Wright's testimony sufficiently rebutted any presumptive harm arising from what she heard another prospective juror say. See Quinn v. State, 958 S.W.2d 395, 401 (Tex.Crim.App. 1997) citing Robinson v. State, 851 S.W.2d 216, 230 (Tex.Crim.App. 1991), cert. denied, 512 U.S. 1246 (1994) and Thomas v. State, 699 S.W.2d. 845, 853 (Tex.Crim.App. 1985).

Law

The Sixth Amendment guarantees the right to a trial by an impartial jury. U.S. Const. amend. VI. Included within that right is the opportunity to conduct an adequate voir dire to identify unqualified jurors. Morgan v. Illinois, 504 U.S. 719 (1992) (citing Dennis v. United States, 339 U.S. 162, 171-72 (1950). No unauthorized person may communicate with a juror about the case on trial. Tex. Code Crim. P. Ann. art. 36.22 (Vernon 2006). When a juror converses with an unauthorized person about the case, "injury to the accused is presumed" and a new trial may be warranted. Quinn, 958 S.W.2d at 401 (citing Robinson v. State , 851 S.W.2d at 230, cert. denied, 512 U.S. 1246 (1994)). That presumption, however, is rebuttable. Id. In determining whether the State rebutted the presumption of harm, appellate courts should defer to the trial court's resolution of the historical facts and its determinations concerning credibility and demeanor. Quinn, 958 S.W.2d at 401 citing Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997). In Thomas, 699 S.W.2d at 853, the Court held that a facially prejudicial statement was sufficiently rebutted when the challenged juror did not tell anyone else about the statement, did not consider the statement, did not know whether the statement was true, and was not influenced at all by the statement in reaching a verdict. Other cases in which it has been held the presumption of harm was sufficiently rebutted are: Robinson, 851 S.W.2d at 230; and Quinn, 958 S.W.2d at 401. Unlike Franklin, the complained-of event here did not occur during the voir dire examination of the venire members, but rather after it had concluded; therefore, defense counsel was not prevented from exercising a challenge based on conduct that had not yet occurred. Nor can we agree with appellant that the record presented reflects juror Wright was biased as a matter of law. Thus, the question of bias was a fact question for the trial court. Wright's conduct was passive, not active. She simply heard a statement made to her by another prospective juror. Counsel was allowed to fully develop the facts. Wright was unambiguous in her testimony that it would not influence her and that she was fair and impartial. Credibility, of course, was for the trial court to determine. Viewing the evidence in a light most favorable to the trial court's crediting of Wright's testimony that she was fair and unbiased, not influenced by the statement she heard, and would not discuss the statement with anyone else, we conclude the record supports the trial court's implied finding that Wright's testimony rebutted any presumed harm. Additionally, we consider the fact Wright was told the statement was, in fact, not true. The trial court's findings having support in the record, we conclude no abuse of discretion is shown. We so hold. We affirm.