Gilbert v. State

Full title: RONALD DEAN GILBERT, Appellant v. THE STATE OF TEXAS, Appellee

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

Date published: Jul 31, 2009

Nos. 05-08-00247-CR, 05-08-00248-CR (Tex. App. Jul. 31, 2009)

Opinion

Nos. 05-08-00247-CR, 05-08-00248-CR

Opinion Filed July 31, 2009.

On Appeal from the 292^nd Judicial District Court Dallas County, Texas, Trial Court Cause Nos. F05-72651-LV and F05-72772-LV.

Before Justices MORRIS, WRIGHT, and BRIDGES.

MEMORANDUM OPINION

Opinion By Justice BRIDGES.

Appellant Ronald Dean Gilbert appeals his convictions of indecency with a child by contact and accompanying sentences. In two issues, appellant argues the trial court erred in (1) denying appellant's challenges for cause on two venire members and (2) consolidating both indictments in one trial. We affirm.

Background

In two separate indictments, appellant was charged with indecency with a child by contact against his nieces, C.J. and J.J. On the day of trial, the State made an oral motion to consolidate the two indictments on the basis that the sexual contact with both C.J. and J.J. occurred pursuant to the same criminal episode. Defense counsel objected that appellant had not received notice of the State's intention to consolidate the offenses and requested severance. The trial court denied appellant's objection and consolidated the cases. During jury selection, appellant moved to strike three venire persons for cause based upon bias against appellant. These venire persons were Flumerfelt, Hill, and Lewins. The trial court denied the challenges for cause. In response to the trial court's denial of the challenges for cause, appellant requested three additional peremptory strikes since he had to use his peremptory strikes on Flumerfelt, Hill, and Lewins. Appellant contends if the trial court had granted those challenges for cause, he would have used those three peremptory strikes on three individuals who eventually sat on the jury. At the time of trial, C.J. was 18 years old and testified that appellant touched her vagina with his hand on several occasions when she was eight years old. C.J. testified the touching occurred over a one-year period at her grandmother's house, where appellant lived, during overnight weekend visits with her father. She stated that she and her sister, J.J., shared a bed at their grandmother's house and the bed is where the touching took place. Her sister did not wake up when this happened to her. C.J. testified that she told her mother about the abuse in 2005. J.J. was 17 years old when she testified appellant touched her breasts and vagina several times with his hand when she was approximately 7 years old. J.J. testified that the touching occurred while she was in bed at her grandmother's house during overnight visits with her father. She stated C.J. never woke up when this happened to her. J.J. told her mother about the abuse on the same day as C.J., although they did so separately. Also, both testified they were unaware of the other's abuse before their outcry to their mother. The jury returned a verdict of guilty as to both indictments and appellant was sentenced to 90 years in prison in each case to run concurrently. This appeal ensued.

Analysis

The Trial Court's Denial of Challenges for Cause

In his first issue, appellant contends the trial court erred when it denied his challenges for cause on two venire members when they stated they had a bias against appellant. The denial or grant of a challenge for cause is within the discretion of the trial court and will not be overturned absent an abuse of that discretion. Banda v. State, 890 S.W.2d 42, 53 (Tex.Crim.App. 1994) (citing Mooney v. State, 817 S.W.2d 693, 701 (Tex.Crim.App. 1991)). We examine the record as a whole to determine whether there is support for the trial court's decisions, and, in doing so, give great deference to the trial court. Patrick v. State, 906 S.W.2d 481, 488 (Tex.Crim.App. 1995); Satterwhite v. State, 858 S.W.2d 412, 415 (Tex.Crim.App. 1993). This is especially true when this court is faced with a vacillating or equivocating venireperson. Banda, 890 S.W.2d at 54; Satterwhite, 858 S.W.2d at 415. The trial court is able to consider important factors such as demeanor and tone of voice that do not come through when reviewing a cold record. King v. State, 29 S.W.3d 556, 568 (Tex.Crim.App. 2000); Banda, 890 S.W.2d at 54 (citing Mooney, 817 S.W.2d at 701). See also Saldano v. State, 232 S.W.3d 77, 91 (Tex.Crim.App. 2007) (We review a trial court's ruling on a challenge for cause with "considerable deference" because the trial court is in the best position to evaluate the veniremember's demeanor and responses.) 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. Tex. Code Crim. Proc. Ann. art. 35.16 (Vernon 2008). A challenge for cause may be made by the State or the defense for a number of reasons, including that the juror has a bias or prejudice in favor of or against the defendant. Id. at art. 35.16(a)(9). Bias exists as a matter of law when a prospective juror admits that he is biased for or against a defendant. Anderson v. State, 633 S.W.2d 851, 854 (Tex.Crim.App. 1982). When a prospective juror is shown to be biased as a matter of law, he must be excused when challenged, even if he states that he can set his bias aside and provide a fair trial. Id. However, it is left to the discretion of the trial court to first determine whether or not bias exists. Id. During jury selection, appellant moved to strike three venire persons for cause based on a bias against appellant due to their previous experiences and the nature of the cases. Appellant appeals the denial of two of those challenges for cause. Where the juror states she believes that she can set aside any influences she may have, and the trial court overrules a challenge for cause, its decision will be reviewed in light of all of the answers the prospective juror gives. Id. Such was the situation in this case. First, appellant argues Flumerfelt should have been stricken for cause because she was biased as a matter of law. During voir dire, the following exchange took place with Flumerfelt:

STATE:

And then you also mentioned about you or a member of your family have been a victim of sexual abuse and you mentioned that that was over 15 years ago?

FLUMERFELT:

Correct.

STATE:

And you can set that aside as well and not-

FLUMERFELT:

I would like to think that I could be impartial in that respect.

STATE:

Okay. Based on the fact that it was so long ago?

FLUMERFELT:

Based on the fact that it was so long ago, but it was my mother and stepfather that were affected by that. So I do understand the ramifications of people who are molested or abused.

STATE:

And you understand in this case those can't come into play; you have to just listen to the facts and evidence in this case alone?

FLUMERFELT:

Yes.

STATE:

And you can do that?

FLUMERFELT:

Yes.

When questioned by defense counsel, the following exchange with Flumerfelt also took place:

DEFENSE:

Ms. Flumerfelt, I want to make sure this was the-it was your grandfather?

FLUMERFELT:

No. It was my mother was assaulted by my uncle and some of his friends and then my stepfather was assaulted in the swimming pool bathroom by a stranger. So that's, in essence, why it was never reported.

DEFENSE:

And you think it's something that could affect you in a case like this?

FLUMERFELT:

I mean, obviously, you know, I see what it does to people. But I would like to think that I can be impartial.

DEFENSE:

Yeah. And that's why I'm asking.

FLUMERFELT:

Yeah.

DEFENSE:

And I want to know, either way. If you can be impartial, that's great. But if you think that would cause you to have a bias or prejudice once you get over there in the jury box, we need to know that.

FLUMERFELT:

Obviously, there could be a bias without knowing the facts of this case. It's hard to-I mean, it's hard to judge whether or not I could put those feelings aside and just view this case for what it is and what are its merits.

DEFENSE:

And that's the tough thing. We just have to know that you can. You have to be able to assure us that you can set those biases and prejudices aside and, you know, be a fair juror. And if you think there's a chance that you couldn't, then we definitely need to know that.

FLUMERFELT:

Okay. Well, you know, I have grown up and lived with a prosecutor all my life. I understand the judicial system and how it works and, you know, that it's put in place for a reason. So I would like to think, yes, I can be impartial.

. . .

DEFENSE:

All right. We just need some assurance that you can be-you can keep your biases and prejudices outside of the jury box. So if you can't that's fine, but-

FLUMERFELT:

I mean, if you are asking one hundred percent without knowing the facts of the case, I don't feel like if I said yes, I don't know if that's truthful or not because I don't know the circumstances of this particular case.

DEFENSE:

Let me ask you like this. Because of the situation in your family involving sexual abuse, is it fair to say that those situations would cause you to have a bias or prejudice against the defendant in a case like this?

FLUMERFELT:

Yes.

DEFENSE:

Challenge for cause, Your Honor.

COURT:

Denied. Anything further?

DEFENSE:

No sir.

After using all of his allotted peremptory strikes, appellant requested additional peremptory strikes and argued the trial court had improperly overruled the challenge for cause on Flumerfelt as follows:

DEFENSE:

On No. 28 . . . Flumerfelt, we felt that she specifically stated that she had a bias, that she would like to think that she can be impartial, but she's not sure. She's been a victim of family violence, I mean, of-she, herself, has not been a victim of sexual abuse; however, family members have been. She said she sees what it does to people. Her father is a prosecutor and she-we do feel that she stated unequivocally that she could not be fair in this case.

COURT:

Stepfather who was a prosecutor and this is the lady that said she had to be- she couldn't be one hundred percent sure. Since I don't know of anybody who can meet the one hundred percent sure test, that's why your challenge for cause was denied.

We have, as the law requires, looked beyond the single exchange identified by appellant to the voir dire record as a whole. See Patrick, 906 S.W.2d at 488. That review has revealed that on at least four occasions Flumerfelt stated she believed she could be impartial. Although she could not assure defense counsel "one hundred percent" that she would keep her "biases and prejudices outside of the jury box," that lack of assurance does not support an allegation of bias. We give great deference to the trial court when we are faced with an equivocating venireperson. Banda, 890 S.W.2d at 54. Thus, appellant has failed to establish Flumerfelt was biased as a matter of law. See Little v. State, 758 S.W.2d 551, 556 (Tex.Crim.App. 1988) (We will not overturn the trial court's ruling unless bias or prejudice has been established as a matter of law.) Appellant next argues Hill should have been stricken for cause because she was biased against appellant as a matter of law. During jury questioning, the following exchange took place:

STATE:

I was looking over your jury questionnaire and saw that you had been through some type of abuse a long time ago?

HILL:

Right.

STATE:

And first off, sorry for that, but you understand in this trial you need to be able to put that aside and block that out and base this case, and this case only, on the facts and evidence that you hear-

HILL:

Right.

STATE:

-from the witness stand, from all the witnesses basically. And you can do that in this case. Is that fair to say?

HILL:

Yes.

STATE:

Okay. You are not going to let that affect you, because this case is a totally different case with totally different people and it has no, you know, resemblance or relationship to anything that you happened to go through?

HILL:

Right.

When questioned by defense counsel, the following exchange took place:

DEFENSE:

You were the victim of sexual abuse?

HILL:

Yes.

DEFENSE:

Did you ever report it to the police?

HILL:

No.

DEFENSE:

So the person that was responsible for that, they were-they were never dealt with in the criminal justice system because of that?

HILL:

Yes. Not by me, but they-there was another victim and so, yes, they were dealt with, but not by my reporting.

DEFENSE:

What about that experience? Is that something that would cause you to have a bias or prejudice in a case like this?

HILL:

Um, no. I think I've matured from that situation. But, no, I don't think so.

DEFENSE:

You don't think that that's something that you would carry into the jury box and would cause you to feel one way or another in a case like this?

HILL:

I would definitely try not to. I don't think I would. I think it's a totally different situation.

DEFENSE:

Let me ask it to you this way. Can you assure us that it wouldn't cause you a bias or prejudice to be a juror in a case like this?

HILL:

I can't say one hundred percent that it wouldn't, but I feel strongly that it would not.

DEFENSE:

So you think there's a possibility that you could have a bias or prejudice? I want to know either way. That's all.

HILL:

I know. I understand your question. Um, it may provoke some emotion, I'll say it that way.

DEFENSE:

You understand we want to make sure-

HILL:

Right.

DEFENSE:

-both sides get a fair trial?

HILL:

I totally understand, right.

DEFENSE:

So if there's a part of you that could be biased or prejudiced because of a case like this and you think you would hold it against the defendant, we just need to know that. Okay?

HILL:

Maybe very slightly, slightly. I guess I'll say very slightly.

DEFENSE:

Okay. So, Ms. Hill, I mean, if you-we just want to know this. Either you can be fair and impartial if you are a juror on a case like this or you can't be fair and impartial. It's just one or the other.

HILL:

Oh, goodness, I guess I will say no. If there's a slight doubt, I guess I will say no.

DEFENSE:

You are saying you can't be a fair and impartial juror because of your prior experience with sexual abuse? You can't be a fair and impartial juror?

HILL:

I guess not. I guess I should say no.

DEFENSE:

Challenge for cause.

COURT:

Ms. Hill, you spent a lot of time saying that you really couldn't be fair and impartial. None of us are one hundred percent in anything.

HILL:

Right.

COURT:

Can you be-can you give the State of Texas a fair trial? Would you listen to their evidence and decide whether or not you believe their evidence the same you listen to the defendant and his testimony, if he presented any? Could you be fair to both sides?

HILL:

Right. I feel like I can, but being second guessed, I'm not one hundred percent sure. But my situation is something that I totally broadcast (phonetic), so I don't think that would prejudice my opinion towards-

COURT:

Thank you. Denied. Anything further?

DEFENSE:

No sir.

After using his peremptory strikes, appellant requested additional peremptory strikes and explained his belief the trial court had improperly overruled the challenge for cause on Hill as follows:

DEFENSE:

Juror No. 37 . . . Hill, also was a challenge that was denied. And again, she was equivocating on how her past abuse would affect her ability to sit on this trial. . . .

COURT:

Is that on juror No. 37 . . . Hill? I made a notation on her that I thought she was one of the most excellent examples of a potential juror that I have seen in many, many years. Who was the third one?

Again, we have looked beyond the single exchange identified by appellant to the voir dire record as a whole. See Patrick, 906 S.W.2d at 488. On multiple occasions, Hill stated she could be impartial and when questioned by the trial court, she specifically stated that her experience would not "prejudice [her] opinion." Appellant argues Hill stated she could not be fair and impartial based on her own experience. However, in the context of the entirety of Hill's responses, we give particular deference to the trial court's decision since he was present to observe the demeanor of the prospective juror and to listen to her tone of voice. Threadgill v. State, 146 S.W.3d 654, 667 (Tex.Crim.App. 2004); Swearingen v. State, 101 S.W.3d 89, 99 (Tex.Crim.App. 2003). Thus, appellant has failed to establish Hill was biased as a matter of law. Little, 758 S.W.2d at, 556. We conclude the trial court did not abuse his discretion when denying appellant's challenges for cause on Flumerfelt and Hill, and we overrule appellant's first issue.

The State's Failure to Provide Notice of Its Intent toConsolidate

In his second issue, appellant contends the trial court erred in consolidating both indictments into one trial when the State failed to give the required written notice. Section 3.02(a) of the penal code permits the prosecution of a defendant in a single criminal action for all offenses arising out of the same criminal episode. A "criminal episode" means the commission of two or more offenses, regardless of whether the harm is directed toward or inflicted upon more than one person, under the following circumstances: (1) the offenses are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan; or (2) the offenses are the repeated commission of the same or similar offense. Tex. Penal Code Ann. § 3.01 (Vernon 2008). Appellant does not argue on appeal that the two indictments were not subject to consolidation. Rather, appellant complains about the consolidation of the indictments due to the State's failure to provide the requisite notice of its intention to consolidate. Section 3.02(b) of the penal code requires the State to file written notice of its intent to consolidate multiple charging instruments no later than thirty days prior to the day of trial. Neither record in the two cases contains such notice. If the State does not give notice of its intent to consolidate the offenses, the defendant may either: (1) object to the lack of notice when he discovers the State's intention to prosecute more than one offense based upon more than one indictment in a single trial; (2) waive notice and proceed to trial; or (3) request severance as provided by section 3.04. LaPorte v. State, 840 S.W.2d 412, 415 (Tex.Crim.App. 1992). If the defendant objects to the lack of notice, the State could proceed on one indictment or seek a reset so as to comply with the notice provision. Id. In the instant matter, both cases were set for trial on the same day, and the State announced it wanted to consolidate the cases on the day of trial. Appellant argued the notice was not timely and asked the trial court to sever the two cases. Because the State failed to provide the required notice, we conclude the trial court erred in consolidating the two indictments in a single trial. See Tex. Penal Code Ann. § 3.02(b) (Vernon 2008). However, we must also determine if such error was harmful. Tex. R. App. P. 44.2. A careful reading of Rule 44.2 and case law reveals several types of error that can occur in criminal cases: (1) constitutional error that is not subject to harmless error analysis (i.e., structural error); (2) constitutional error that is harmful; (3) constitutional error that is harmless; (4) non-constitutional error that is harmful (i.e., affects a substantial right); and (5) non-constitutional error that is harmless (i.e., does not affect a substantial right). Carranza v. State, 980 S.W.2d 653, 656 (Tex.Crim.App. 1998). Therefore, when conducting a rule 44.2 harm analysis, typically our first task is to determine whether the failure to substantially comply under 3.02(b) is an error of constitutional magnitude or an error which affects a substantial right. Id. In this case, however, appellant states he is not raising a constitutional error. Therefore, "any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded." Tex. R. App. P. 44.2 (b). The proper standard of review to be used when determining if a substantial right is affected pursuant to a rule 44.2 (b) analysis is whether the error had a substantial or injurious effect or influence in determining the jury's verdict. Llamas v. State, 12 S.W.3d 469, 470 (Tex.Crim.App. 2000); King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). Once appellant became aware the trial court was going to allow the consolidation, defense counsel requested the trial court sever the two cases on the basis that "there's more than one victim alleged here, I think that clearly prejudices [appellant]." However, no further explanation was provided as to why consolidation of the two cases would cause appellant unfair prejudice. Evidence of other crimes may be admitted if it rebuts a defensive theory. Matthews v. State, 152 S.W.3d 723, 731 (Tex.App.-Tyler 2004, no pet.). Appellant's defensive theory was that C.J. and J.J.'s allegations were untrue due to inconsistencies in their testimony. Thus, even had Appellant's cases been tried separately, it is probable that the testimony of the other victim would have been admissible to refute the defensive theory that the complainants concocted the story. See id.; Salazar v. State, 127 S.W.3d 355, 365 (Tex.App.-Houston [14^th Dist.] 2004, pet. ref'd). See also Castoreno v. State, 932 S.W.2d 597, 600 (Tex.App.-San Antonio 1996, pet. ref'd) (stating evidence of extraneous acts was admissible to rebut defensive theory that the defendant was being framed). We conclude that the trial court could have reasonably found that joinder of the cases was not unfairly prejudicial against appellant. Therefore, the trial court's error did not have a substantial or injurious effect or influence in determining the jury's verdict. See Llamas, 12 S.W.3d at 470; King, 953 S.W.2d at 271. We overrule appellant's second issue. Having overruled appellant's two issues, we affirm the judgment of the trial court.