Roger Alexander Conant v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-17-00066-CR
Roger Alexander Conant, Appellant
v.
The State of Texas, Appellee
FROM THE COUNTY COURT AT LAW NO. 3 OF TRAVIS COUNTY
NO. C-1-CR-14-213580, HONORABLE JOHN LIPSCOMBE, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant Roger Alexander Conant was found guilty by a jury of misdemeanor
driving while intoxicated. See Tex. Penal Code § 49.04. The trial court assessed his punishment at
confinement for four days. In one issue, appellant contends that the trial court erred in overruling
a defense challenge for cause to a prospective juror. For the following reasons, we affirm
the judgment.1
BACKGROUND
Appellant was arrested in August 2014 for misdemeanor driving while intoxicated.
The jury trial occurred in June 2016. During her voir dire examination, the prosecutor asked the
1
Because the parties are familiar with the facts of the case and its procedural history, we do
not recite them in this opinion except as necessary to advise the parties of the Court’s decision and
the basic reasons for it. See Tex. R. App. P. 47.1, 47.4.
prospective jurors how they felt about DWI laws in Texas in general. The first venireperson to
respond “guess[ed]” that they were “a little lax,” elaborating about repeat offenders. After two other
venirepersons similarly responded to the question, prospective juror number 6 (PJ 6), who is the
subject of this appeal, had the following exchange with the prosecutor:
[Prosecutor]: [PJ 6], how do you feel about—what you know—and we’re about to
get into what the law is. And I’m going to tell you all sorts of stuff
that you probably never knew you would know, but how do you feel
about—as far as what you know about DWI laws in Texas?
[PJ 6]: Although I’m not well informed, from what I know either through
media or, you know—um—I—I mean, I don’t know
what—necessarily, you know, first time—what the conviction rates
are or, you know, what does a first-time felony or conviction get you.
[Prosecutor]: Uh-huh.
[PJ 6]: But I guess even—even with—I guess there’s just no opportunity
for—for that person to get out on the road despite what convictions
are in place—um—you know, revocation of driver’s license or if
there’s monitors put on the vehicle. Um—just from—um—my work
experience I’ve—I’ve known just people tend to go around—around
about the system.
The prosecutor followed up with a question to PJ 6 about her work experience, and she responded
that she was a “neonatal ICU social worker at the children’s hospital.” During his voir dire
examination, defense counsel did not specifically direct any questions to PJ 6.
During the challenges for cause, defense counsel raised concerns about PJ 6 in the
following exchange with the trial court and the prosecutor:
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[Defense Counsel]: [PJ 6] said something to the effect that DWI or repeat
offenders that are in the system and—and, you know,
that—and she thinks the laws are too lax.
[The Court]: Okay. You haven’t told me anything yet.
[Defense Counsel]: Well, that’s, you know, what—that’s what she said.
[The Court]: But, you know—
[Defense Counsel]: I’m not trying—
[The Court]: No, but—
[Prosecutor]: Judge, there’s nothing obj—I mean, those are her opinions.
There’s nothing that would be a reason to strike her for cause.
That she has opinions—we all have opinions.
[The Court]: That’s exactly right. Okay. I’ll ask her the question. Out of
an over abundance of caution.
After PJ 6 was brought to the bench, she had the following exchange with the trial
court and defense counsel:
[The Court]: Hi. Okay. The questions were—one thing was that—that you
seem to think that DWI laws were too—too lax, too free and
easy.
[PJ 6]: Yes.
[The Court]: Okay. You’re entitled to your opinion, but the question is,
would that cause you to have a bias or prejudice in any DWI
case because the law is the law?
[PJ 6]: Correct. And—and I was, you know, through the questioning,
you know, I was thinking about it. And I think—because
being a mandated reporter for the state, you know, working
with our—children in the hospital and drug testing and—and
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so I think there’s a lot of—there is some prejudice there based
on my work.
[The Court]: Okay.
[PJ 6]: Um—and also, you know, when it came to the validity of
testing, you know, in this case. You know,
intox—uh—alcohol. You know, to a degree I understand the
fallacy that—that come with testing but—um—again, as a
mandated reporter, I have to believe in the validity of what
I’m reporting to the—to the state.
[The Court]: Okay.
[PJ 6]: Regarding, you know, abuse, neglect, drug use and things of
that sort.
[The Court]: Okay. I appreciate it. Does anybody have any questions?
[Defense Counsel]: Would those feelings that you just discussed, or any feelings
at all, affect your ability to come up with a verdict in this
case?
[PJ 6]: I think it might impact, you know, the whole question of
doubt. Or, you know, whether—you know, I—there’s a sense
of doubt created.
[The Court]: Okay. Thank you, ma’am. I appreciate it.
Counsel, once they indicate bias, you can’t rehabilitate, no
more. [sic] You know, just—okay. So you’re going to renew
your objection?
[Defense Counsel]: Uh—yes.
[The Court]: I’m going to overrule that.
The record reflects that defense counsel later requested an additional peremptory
strike, stating: “for the record, [he was] forced to—to ask again that [PJ 6] be challenged for cause.
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And if you’re not going to do that—you’re not going to reconsider—well, then we would request an
additional peremptory.” The trial court responded that he had “overruled” defense counsel’s
objection and then he denied appellant’s request for an additional peremptory strike. The record
reflects that defense counsel used a peremptory strike on PJ 6 and identified potential juror no. 15
as the potential juror that the defense would have struck. After the jury was empaneled, defense
counsel also stated on the record that “if we had not been forced to use a strike to remove [PJ 6], then
we would have used it to remove Juror No. 5, who is actually on the jury.”
Following the jury verdict of guilty, the trial court sentenced appellant to confinement
of four days. Appellant filed a motion for new trial, which was overruled by operation of law. This
appeal followed.
ANALYSIS
In one issue, appellant argues that the trial court erred in overruling the defense
challenge for cause to PJ 6 because she was biased as a matter of law and should have been
automatically excluded. According to appellant, PJ 6 “admitted that because of her views on the
DWI laws she would be biased in any DWI case” and that “[s]he also implied that because of her
work, she would be inclined to believe that DWI testing was valid, despite any ‘fallacy’ in the testing
shown by the defense.” Appellant further argues that the trial court “ruled that she had indeed shown
bias, but then unaccountably overruled the challenge for cause.”
Article 35.16 of the Texas Code of Criminal Procedure allows a challenge for cause
when “the juror has a bias or prejudice in favor of or against the defendant.” Tex. Code Crim. Proc.
art. 35.16(a)(9); see also Anderson v. State, 633 S.W.2d 851, 853–54 (Tex. Crim. App. 1982)
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(explaining that juror is biased when juror’s inclination toward one side of issue leads to natural
inference that juror will not act with impartiality and providing examples of when bias exists as
matter of law). The defense may also challenge a juror for cause when the juror “has a bias or
prejudice against any of the law applicable to the case upon which the defense is entitled to rely,
either as a defense to some phase of the offense for which the defendant is being prosecuted or as
a mitigation thereof or of the punishment thereof.” See Tex. Code Crim. Proc. art. 35.16(c)(2).
As an initial matter, the State contends that appellant did not preserve his issue for
appellant review. “To preserve error on denied challenges for cause, an appellant must demonstrate
on the record that: 1) he asserted a clear and specific challenge for cause; 2) he used a peremptory
challenge on the complained-of venireperson; 3) all his peremptory challenges were exhausted; 4) his
request for additional strikes was denied; and 5) an objectionable juror sat on the jury.” Feldman
v. State, 71 S.W.3d 738, 744 (Tex. Crim. App. 2002). The State contends that appellant did not
preserve his issue for appeal because he did not assert a clear and specific challenge for cause, “much
less the bases he asserts now on appeal.” Based on our review of the record, however, we conclude
that appellant preserved his issue to the extent that he challenges the trial court’s denial of defense’s
challenge for cause on the ground that PJ 6 was biased against the applicable law and turn to the
substance of this complaint. See id.; see also Gardner v. State, 306 S.W.3d 274, 300 (Tex. Crim.
App. 2009) (requiring description of “specific challenge for cause” to preserve issue for appellate
review concerning venire member).
“When reviewing a trial court’s decision to deny a challenge for cause, we look at the
entire record to determine if there is sufficient evidence to support the ruling.” Davis v. State,
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329 S.W.3d 798, 807 (Tex. Crim. App. 2010) (citing Feldman, 71 S.W.3d at 744); see Buntion
v. State, 482 S.W.3d 58, 84 (Tex. Crim. App. 2016) (explaining that appellate court “examine[s] the
voir dire of the prospective juror as a whole” when reviewing trial court’s decision concerning
challenge for cause). “The test is whether a bias or prejudice would substantially impair the venire
member’s ability to carry out the juror’s oath and judicial instructions in accordance with the law.”
Davis, 329 S.W.3d at 807 (citing Gardner, 306 S.W.3d at 295). “Before venire members may be
excused for cause, the law must be explained to them, and they must be asked whether they can
follow that law, regardless of their personal views.” Id. The party seeking to have the prospective
juror struck does not meet his burden of establishing that the challenge is proper “until he has shown
that the venire member understood the requirements of the law and could not overcome his or her
prejudice well enough to follow the law.” Id.; see also Comeaux v. State, 445 S.W.3d 745, 749 (Tex.
Crim. App. 2014) (“Before the judge excuses the prospective juror, the law must be explained to him
and the challenger must show that the potential juror understood the law and still could not overcome
his prejudice.”).
“The standard of review on appeal is whether the trial court abused its discretion
when it overruled a challenge for cause.” Buntion, 482 S.W.3d at 84 (citing Davis, 329 S.W.3d at
807); see Blue v. State, 125 S.W.3d 491, 497 (Tex. Crim. App. 2003) (explaining that appellate court
reviews trial court’s ruling on challenge for cause “with considerable deference” and that appellate
court will reverse ruling “only if a clear abuse of discretion is evident”). “We afford great deference
to the trial court’s decision because the trial judge is present to observe the demeanor of prospective
jurors and to listen to tones of voice.” Buntion, 482 S.W.3d at 84 (citing Davis, 329 S.W.3d at 807);
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see King v. State, 29 S.W.3d 556, 568 (Tex. Crim. App. 2000) (explaining that “considerable
deference is given to the trial court because it is in the best position to evaluate the venireman’s
demeanor and responses”). Further, “[p]articular deference is due when the prospective juror’s
answers are vacillating, unclear, or contradictory.” Buntion, 482 S.W.3d at 84; see King, 29 S.W.3d
at 568 (“When the potential juror’s answers are vacillating, unclear or contradictory, particular
deference is accorded to the trial court’s decision.”).
Based on our review of the voir dire examination of PJ 6, we cannot conclude that
the trial court abused its discretion in denying defense’s challenge for cause. During her examination
of PJ 6, the prosecutor only asked her a general question about “DWI laws in Texas,” defense
counsel did not specifically direct any questions to PJ 6, and PJ 6 did not respond to questions that
were generally directed to the prospective jurors about following the law.2 When PJ 6 was brought
to the bench on defense’s challenge for cause, she answered “Yes” when asked by the trial court if
she thought that “DWI laws were too—too lax, too free and easy,” but the jury’s role was limited
to determining if appellant had committed DWI. Defense counsel did not ask PJ 6 about her
understanding of the applicable law to this case or if she could follow that law, regardless of her own
personal views. See Comeaux, 445 S.W.3d at 749; Davis, 329 S.W.3d at 807.
Further, we accord particular deference to the trial court here because PJ 6’s answers
were unclear and, at times, contradictory concerning her alleged opinions. See King, 29 S.W.3d at
568; see also Rachal v. State, 917 S.W.2d 799, 810 (Tex. Crim. App. 1996) (explaining that trial
2
For example, after explaining the necessity defense, defense counsel asked the prospective
jurors if “anyone here would have trouble following that rule?” Other general questions included
if anyone: (i) would hold it against a defendant for remaining silent, (ii) thought the prosecutor starts
out ahead, or (iii) “believe[d] blood alcohol testing [was] 100% accurate all the time, infallible?”
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court’s “superior point of view is particularly important and deserving of our deference” when
potential juror’s statements are unclear). For example, when asked by the trial court if her opinions
would cause her to have bias or prejudice in “any DWI case because the law is the law,” she
answered “[c]orrect” and then brought up her role as a “mandated reporter for the state,” expressing
“some prejudice there based on my work” and that she had “to believe in the validity of what [she
was] reporting to the—to the state . . . [r]egarding, you know, abuse, neglect, drug use and things of
that sort.” Defense counsel’s only follow-up question to PJ 6 was whether her “feelings that [she]
just discussed, or any feelings at all” would “affect [her] ability to come up with a verdict in this
case,” and she answered that she “[thought] it might, impact, you know, the whole question of doubt.
Or you know, whether—you know, I—there’s a sense of doubt created.”
Because we cannot conclude that the trial court abused its discretion in overruling
defense counsel’s challenge for cause based on bias against the applicable law, we overrule
appellant’s issue.
CONCLUSION
Having overruled appellant’s issue, we affirm the judgment of conviction.
__________________________________________
Melissa Goodwin, Justice
Before Chief Justice Rose, Justices Goodwin and Field
Affirmed
Filed: June 13, 2018
Do Not Publish
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