Moses Eli Lopez v. State ( 2020 )

Opinion issued April 30, 2020
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-01004-CR
NO. 01-18-01009-CR
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MOSES ELI LOPEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Case Nos. 1562829 & 1562830
MEMORANDUM OPINION
Appellant Moses Eli Lopez was charged in separate indictments with two
counts of continuous sexual abuse of a child. In a consolidated trial, a jury found
appellant guilty on both counts and the court assessed his punishment in each case
at 99 years’ incarceration to be served concurrently in the Texas Department of
Criminal Justice. On appeal, appellant argues that the trial court abused its discretion
in denying his motion to strike a prospective juror. We affirm the trial court’s
judgment.
Background
Juror No. 45 made the following remarks during voir dire. Specifically, during
the State’s general voir dire, Juror No. 45 answered that she did not believe that
children lie about having been sexually abused and she “disagreed strongly” with
the statement, “Children are easily influenced to make up allegations of sexual
abuse.”
During trial counsel’s general voir dire, counsel asked the venire members
that if he or she believed beyond a reasonable doubt that appellant was guilty of one
of the two acts required to be proven to convict him of continuous sexual abuse, it
would be easier to believe that appellant was guilty of the second act, thereby
lowering the State’s burden of proof on the second act. Several jurors raised their
hands, including Juror No. 45.
THE JUROR: 45. I’m not very happy sitting here.
TRIAL COUNSEL: Why do you think? [2 RR 95]
THE JUROR: For a lot of reasons. I feel bad for your client. I’m sure
it’s something behind this but based on my personal issues that
I’ve had to deal with I meet with men every Saturday that have
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gone through this and if it’s established that your client is one
and the same I’m not going to be happy to be sitting on that jury.
TRIAL COUNSEL: So if I understand correctly you have a bias on that
case based on the kind of work that you do?
THE JUROR: Yes. Yes, sir.
TRIAL COUNSEL: No. 45. Thank you for your honesty.
When the trial court asked trial counsel to identify the prospective jurors that
he wanted to discuss during the bench conference, counsel stated: “10 and 1 and 20
and 51.” The trial court struck Jurors No. 10, 20, and 51 without further discussion
but did not specifically address Juror No. 1. When asked if he wanted to strike any
other jurors besides Jurors No. 10, 13, 15 and 20, trial counsel replied, “I think 49.”
Counsel later moved to strike Juror No. 45 for cause.
TRIAL COUNSEL: The other one was 45. 45, talked --
THE COURT: 45 is --
TRIAL COUNSEL: We can talk to him about --
THE COURT: This was because of the kind of case that he would have
to --
STATE: If I may Your Honor he very specifically said that if it is
clearly established that the guy is the guy then he would have a
bias. So he wasn't saying biased from the beginning but if he
found him guilty he would have an issue, which is allowed.
THE COURT: He thought actually telling you but he was saying based
on the kind of case, was it based on the kind of case because of
the work he does. It’s like we have a bias against sexual abusers.
That’s kind of what he’s saying. That’s -- actually he is not
struck. He’s not going to be granted.
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TRIAL COUNSEL: He’s someone --
THE COURT: So at the moment I’ve got 10, 13, 20, 49 and 51.
Anybody else?
After the jury was seated, the trial court asked if either side objected to the
composition of the jury. Trial counsel asked for an additional preemptory strike to
replace the one he had to use due to the court’s denial of his motion to strike for
cause Juror No. 45. The trial court denied the request. Trial counsel then informed
the court that if he had been granted his request for an additional preemptory strike,
he would have exercised it on Juror No. 1.
Issue 1
In his sole issue, appellant argues that the trial court abused its discretion in
denying his motion to strike Juror No. 45 because the prospective juror “admitted he
would be biased and he would not be a fair and impartial juror in this case.”
A. Standard of Review and Applicable Law
A prospective juror is challengeable for cause if he or she has a bias or
prejudice against the defendant or against the law upon which either the State or the
defense is entitled to rely. TEX. CODE CRIM. PROC. art. 35.16(a)(9) & (c)(2); Buntion
v. State, 482 S.W.3d 58, 83–84 (Tex. Crim. App. 2016). “Bias, by itself, is not
sufficient for a challenge for cause.” Henson v. State, 173 S.W.3d 92, 99 (Tex.
App.—Tyler 2005, pet. ref’d). Rather, the test is whether the bias or prejudice would
substantially impair the prospective juror’s ability to carry out his oath and judicial
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instructions in accordance with the law. Buntion, 482 S.W.3d at 84; see also
Wainwright v. Witt, 469 U.S. 412, 424 (1985).
Before a prospective juror may be excused for cause on this basis, the law
must be explained to him, and he must be asked whether he can follow that law,
regardless of his personal views. Buntion, 482 S.W.3d at 84; Davis, 329 S.W.3d at
807. Thus, to establish that a challenge for cause is proper, the proponent of the
challenge must show that the prospective juror understood the requirements of the
law and could not overcome his prejudice well enough to follow the law. Buntion,
482 S.W.3d at 84; Davis v. State, 329 S.W.3d 798, 807 (Tex. Crim. App. 2010).
When determining whether a trial court abused its discretion when it overruled a
challenge for cause during voir dire, we examine the voir dire of the venire member
as a whole and decide whether the record shows that his convictions would interfere
with his ability to serve as a juror and uphold his oath. Buntion, 482 S.W.3d at 84;
Davis, 329 S.W.3d at 807. A trial judge’s ruling on a challenge for cause may be
reversed only for a clear abuse of discretion. See Davis, 329 S.W.3d at 807.
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 venire
member’s demeanor and responses. Id. When a venire member’s answers are
vacillating, unclear, or contradictory, we accord particular deference to the trial
court’s decision. Id.; see also Rachal v. State, 917 S.W.2d 799, 810 (Tex. Crim. App.
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1996) (explaining that “trial judge’s superior point of view is particularly important
and deserving of our deference” when potential juror’s statements are unclear).
B. Analysis
Appellant argues that the trial court abused its discretion by denying his
motion to strike Juror No. 45 because the prospective juror “admitted he would be
biased and he would not be a fair and impartial juror in this case.” Juror No. 45,
however, did not directly express bias against appellant. See TEX. CODE CRIM. PROC.
art. 35.16(a)(9) & (c)(2) (stating prospective juror is challengeable for cause if he is
biased or prejudiced against defendant or against law upon which either State or
defense is entitled to rely). Rather, the record reflects that Juror No. 45 expressed
compassion for appellant and stated that he was “sure it’s something behind this.”
He also did not express a bias or prejudice against any of the law applicable to the
case upon which the defense was entitled to rely. He stated that he meets with men
every Saturday who have “gone through this” and that “if [it was] established” that
appellant was “one and the same,” he was not going to be happy to be sitting on the
jury. At most, Juror No. 45 admitted that he had a “bias against the nature of the case
based on the kind of work that [he does],” i.e., continuous sexual assault of a child,
and he indicated that he was not “happy” at the prospect of serving on a jury in such
a case.
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To the extent that Juror No. 45’s remarks are ambiguous and could be
interpreted as demonstrating a bias against appellant, the trial court understood the
juror’s remarks as indicating a bias towards the nature of the case, rather than a bias
against appellant. We must accord particular deference to the trial court’s decision
to deny a challenge for cause under such circumstance. See Davis, 329 S.W.3d at
807 (stating appellate courts accord particular deference to trial court’s decision
when venire member’s answers are vacillating, unclear, or contradictory).
As the party challenging Juror No. 45 for cause, appellant had the burden of
proving by a preponderance of the evidence that Juror No. 45 was not only biased
or prejudiced against him, but that he also lacked impartiality. See Buntion, 482
S.W.3d at 84 (stating venire member is challengeable for cause if bias or prejudice
would substantially impair venire member’s ability to carry out his oath and judicial
instructions in accordance with law). Even if Juror No. 45’s remarks expressed a
bias against appellant, as appellant contends, trial counsel did not ask him whether
he could overcome his bias well enough to follow the law, or ask for an opportunity
to do so, as counsel had done with other venire members who indicated a bias or
prejudice. Therefore, appellant did not meet his burden of proof because he did not
establish that Juror No. 45 understood the requirements of the law and could not
overcome his prejudice well enough to follow the law. See id.; Davis, 329 S.W.3d
at 807.
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Appellant argues that the trial court abused its discretion by failing to call
Juror No. 45 to the bench to clarify his remarks. The record, however, reflects that
appellant has not preserved this complaint for our review because he did not ask the
trial court to call Juror No. 45 to the bench during conference or object to the trial
court’s alleged failure to allow him to do so. See TEX. R. APP. P. 33.1(a)(1).
Based on the record before us, given the considerable deference we must show
to the trial court’s decision, we cannot say that the trial judge’s denial of appellant’s
motion to strike Juror No. 45 for cause constituted a clear abuse of discretion. See
Buntion, 482 S.W.3d at 84; Davis, 329 S.W.3d at 807.
In his concluding paragraph, appellant further contends that the trial court
abused its discretion by failing to allow him to argue his motion to strike Juror No.
45 for cause and failing to address appellant’s request to “talk about” Juror No. 1 at
the beginning of the bench conference. Appellant, however, did not object to the trial
court’s alleged failure to allow him to argue his motion to strike Juror No. 45 for
cause or make a proffer or bill of exception regarding any argument his counsel
wanted to make regarding his challenge for cause, and therefore, he has not
preserved this issue for our review. TEX. R. APP. P. 33.2 (“To complain on appeal
about a matter that would not otherwise appear in the record, a party must file a
formal bill of exception.”); cf. Barnes v. State, Nos. 04-98-00514-CR, 04-98-00515-
CR, 1999 WL 623686, at *6 (Tex. App.—San Antonio Aug. 18, 1999, no pet.) (not
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designated for publication) (holding that defendant did not preserve his complaint
that trial court erred by not allowing his counsel to finish his objection because
defendant did not object to trial court’s conduct and did not make proffer or bill of
exception regarding what else his counsel wanted to say). Similarly, appellant did
not object to the trial court’s failure to address appellant’s request to “talk about”
Juror No. 1 at the beginning of the bench conference, and therefore, he has not
preserved his complaint for appellate review. See TEX. R. APP. P. 33.1(a); see also
Credille v. State, 925 S.W.2d 112, 115 (Tex. App.—Houston [14th Dist.] 1996, pet.
ref’d) (holding that in order to preserve claim that trial court erred in overruling
defendant’s challenge against venire member, defendant must object before jury is
sworn, pursue objection until he receives adverse ruling from trial court, and, if
necessary, press trial court to make definite ruling on his objection).
We overrule appellant’s sole issue.
Conclusion
We affirm the trial court’s judgment.
Russell Lloyd
Justice
Panel consists of Chief Justice Radack and Justices Lloyd and Kelly.
Do not publish. TEX. R. APP. P. 47.2(b).
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