No. 01-07-00421-CR
Opinion issued July 17, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.4(b).
On Appeal from the 405th District Court, Galveston County, Texas Trial Court Cause No. 06CR1846.
Panel consists of Chief Justice RADACK and Justices KEYES and HIGLEY.
EVELYN V. KEYES, Justice.
Appellant, Jonathan Daniel Ledbetter, pleaded nolo contendere without an agreed punishment recommendation by the State to the offense of aggravated robbery, and a jury assessed punishment at 12 years in prison. In two points of error, appellant argues that (1) the trial court violated his Sixth Amendment right to question venire members in a challenge for cause based on their unwillingness to consider mitigating evidence and (2) the trial court violated his Sixth Amendment right to introduce evidence of the complaining witnesses' judgments and sentences for prior convictions. We affirm.
Background
On June 13, 2006, appellant and another man kicked in the door of room 126 of the El Rancho Motel, where Eleutario Lara resided with his girlfriend and two sons. Upon entering the room, the men demanded all of Lara's money and appellant cocked a shotgun while pointing the barrel into the face of Lara's son. After Lara told them that he did not have any money, appellant took Lara's wallet and fled in a black sport utility vehicle. One of Lara's neighbors called the police and Lara provided a description of appellant. Detective Hansen of the Dickinson Police Department recognized the description as that of appellant and went to his home. At appellant's home, Detective Hansen noticed what appeared to be a shotgun wrapped in a towel inside the black sport utility vehicle. Appellant's mother agreed to a search of the premises, and the police found money, Lara's wallet, and the shotgun. Appellant was then arrested for aggravated robbery. Appellant pleaded nolo contendere to aggravated robbery, and a jury heard evidence on punishment. Eleutario Lara, his girlfriend, and appellant testified to the events during the crime. Detective Hansen, appellant's mother, and other Dickinson Police Department officers testified to the investigation. The jury assessed punishment at 12 years in prison. Voir Dire
In his first point of error, appellant contends that the trial court denied him the opportunity to question certain venire members whom he had challenged for cause in violation of his Sixth Amendment right to due process. When conducting voir dire, appellant questioned the venire members on whether they would consider mitigating factors such as family background and whether particular venire members would be able to consider the full range of punishment. Appellant identified 19 venire members whom he would challenge for cause because "they would not consider any mitigating factors. The only thing they would base their decision on is the range, the facts of the crime and the range of punishment." Appellant went on to argue, "[M]y concern is they are not going to take mitigating factors into account which violates Morgan v. Illinois and we [will] impanel a juror that is not able to consider mitigating factors." The trial court clarified, "You're not saying any of those [venire members] said they cannot consider the full range of punishment. You're just saying they would not consider his background and you're saying that's a mitigating factor?" Appellant responded, "Yes, sir." The trial court denied appellant's motion and did not allow any further questioning of the venire members. Standard of Review The trial court has broad discretion over the process of selecting a jury. Barajas v. State, 93 S.W.3d 36, 38 (Tex.Crim.App. 2002). We leave to the trial court's discretion the propriety of a particular question, and the trial court's discretion will not be disturbed absent an abuse of discretion. Id. (citing Allridge v. State, 762 S.W.2d 146, 167 (Tex.Crim.App. 1988)). A trial court abuses its discretion only when a proper question about a proper area of inquiry is prohibited. Id. (citing Allridge, 762 S.W.2d at 163). A question is proper if it seeks to discover a juror's views on an issue applicable to the case. Id.(citing Smith v. State, 703 S.W.2d 641, 643 (Tex.Crim.App. 1985)). Analysis The Texas Court of Criminal Appeals has held, "A prospective juror is not challengeable for cause just because he does not consider a particular type of evidence to be mitigating. And whether a juror considers a particular type of evidence to be mitigating is not a proper area of inquiry." Standefer v. State, 59 S.W.3d 177, 181 (Tex.Crim.App. 2001). Here, appellant's attempt to question venire members on their willingness to consider his "background" as a particular mitigating factor in sentencing him for aggravated robbery was not a proper question. See id.; Barajas, 93 S.W.3d at 38; see also Davis v. State, 223 S.W.3d 466, 471 (Tex.App.-Amarillo 2006, pet. dism'd) (holding that any error pertaining to capital sentencing special issues such as mitigating factors was harmless, given that appellant was not convicted of capital murder). Appellant asserts that article 35.16(c)(2) of the Texas Code of Criminal Procedure applies, making it an abuse of discretion for the trial court to refuse to allow questioning of a juror who could not "follow the law" with regard to mitigating evidence. See Tex. Code Crim. Proc. Ann. art. 35.16(c)(2) (Vernon 2006). The trial court must decide whether a venire member has demonstrated enough bias to require a challenge for cause, and the trial court should be granted broad discretion. See Barajas, 93 S.W.3d at 38. However, a potential juror may refuse to consider particular evidence as mitigating evidence and still follow the law. See Standefer, 59 S.W.3d at 181-82. Therefore, the trial court did not abuse its discretion in refusing to allow appellant to question venire members on mitigating factors. See Barajas, 93 S.W.3d at 38. We overrule appellant's first point of error. Evidence of Witnesses' Judgments and Sentences In his second point of error, appellant argues that the trial court violated his Sixth Amendment right to due process by refusing to admit into evidence written copies of the judgments, sentences, and dismissals of previous convictions of Lara and his girlfriend. The State argues that appellant did not preserve his claim of error under the Sixth Amendment for review by this Court. At the sentencing hearing, Lara and his girlfriend both admitted that they had pending aggravated assault charges against them at the time of the robbery. They both testified that they had accepted plea bargains, but denied that their plea bargains were related in any way to their testimony in appellant's trial. Their testimony also established that they agreed to the plea bargains just a few days after they were robbed by appellant. Appellant subsequently sought to admit into evidence the written documentary evidence of the judgments against Lara and his girlfriend. The State objected on the grounds that such evidence was redundant because there was already testimony of the judgments. Appellant argued that the documents were important because they established the dates of the plea bargains, that the dates were "too close to be coincidental" and that they were necessary to demonstrate the untruthfulness of the witnesses. The trial court sustained the State's objection, ruling that the dates had already been elicited from the witnesses in testimony and that no further evidence was necessary. Appellant made no further objection or argument. Standard of Review We review a trial court's ruling on the admissibility of evidence for an abuse of discretion. Ellis v. State, 99 S.W.3d 783, 788 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd) (citing Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000)). We must uphold the trial court's ruling if it was within the zone of reasonable disagreement. Id. Analysis Generally, a timely, specific objection is required to preserve constitutional error for appeal. Tex. R. App. P. 33.1(a); Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002). This Court has determined that failure to preserve error, including failure to object, waives the error. Boler v. State, 177 S.W.3d 366, 373 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd) (citing Hull v. State, 67 S.W.3d 215, 217-18 (Tex.Crim.App. 2002)). To preserve his argument for appeal, appellant was required to clearly articulate his constitutional objection so that the trial court had a chance to rule on it. See Reyna v. State, 168 S.W.3d 173, 179 (Tex.Crim.App. 2005) (holding that an objection made on evidentiary grounds did not preserve argument made on constitutional grounds for appeal). Without such a preservation, the issue is waived. Boler, 177 S.W.3d at 373. Here, appellant's argument in the trial court did not clearly articulate that his argument was based on the Sixth Amendment. Because appellant did not make a timely or specific objection on Sixth Amendment grounds, he has not preserved this point of error for appeal; therefore, it is waived. See Tex. R. App. P. 33.1(a); Reyna, 168 S.W.3d at 179; Boler, 177 S.W.3d at 373. We overrule appellant's second point of error. Conclusion
We affirm the judgment of the trial court.