Todd Allen Bancroft v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00040-CR
TODD ALLEN BANCROFT APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
------------
MEMORANDUM OPINION1
------------
In one issue, appellant Todd Allen Bancroft appeals his conviction for
assault causing bodily injury to a family or household member.2 We will affirm.
The facts of this case are not in dispute. The issue in this case relates to
the trial court’s denial of Bancroft’s request for a recess during voir dire. After the
1
See Tex. R. App. P. 47.4.
2
See Tex. Penal Code Ann. § 22.01(b)(2) (Vernon Supp. 2010).
State completed its voir dire, the following exchange between Bancroft’s attorney
and the trial court took place:
[Defense Counsel]: Judge, I’ve spoken with the prosecutor and
certainly I don’t think this was malicious on anybody’s parts, certainly
not the State’s part. But she has told me and I heard during the
Court’s voir dire that the jury questionnaires were made available
yesterday evening. The Defense was never made aware that the
questionnaires were available, so we didn’t know that they were
available.
The State had all night to -- had the evening to review the
questionnaires prior to the voir dire examination of the jury and the
Defense [did] not. This, obviously, puts the State at a significant
advantage.
Had we been notified that we -- that the questionnaires were
available, certainly we would have availed ourselves of the
opportunity to review those prior to voir dire examination of the jury.
We would ask that the Court -- the place that we’re at right now is
both the Court and the State have conducted their voir dire
examination of the jury. Prior to our voir dire examination of the jury,
we would ask for a recess until 2:00 o’clock so that we can
sufficiently review and examine the questionnaires.
We first got access to the questionnaires when I arrived in court this
morning at just after 8:30. Again, I’m not saying this was a malicious
act on anybody’s part, but we were not aware that they were
available, did not have the opportunity to review those
questionnaires as the State did. We believe that this deprives
[Bancroft] of a fair trial under the state and federal constitutions as it
puts the State at a significant advantage. And we would ask for
recess until 2:00 o’clock to review the questionnaires.
[The Court]: Well, you knew that we would get a jury out of
Monday’s panel to come back Tuesday morning.
[Defense Counsel]: I was not aware of that.
[The Court]: Counsel, we had discussions of that weeks before
talking about when we would try this case.
2
[Defense Counsel]: We had talked about -- my recollection of it,
Judge, is that -- that we would arraign [Bancroft] last week on
Tuesday and that we were then recessed until this morning for jury
selection. There was no -- I don’t recall any discussion of when --
what pool the panel would be pulled out of.
[The Court]: Did we not have discussions yesterday regarding
[Bancroft’s] mental condition that I said, okay, we’re going to have to
cancel the jury if he’s incompetent?
[Defense Counsel]: Well, we did have discussions about his --
[The Court]: Did you think at 9:00 o’clock this morning that I was
going to get a panel from this morning and have them come up?
[Defense Counsel]: Yes.
[The Court]: And so you’re thinking that at 9:00 o’clock this morning
when the jurors report to the jury room at 8:00 o’clock, they would
have had -- they would have had -- filled out their questionnaires and
I would have made copies and would have distributed those to you
blind?
[Defense Counsel]: Well, in any event, Judge --
[The Court]: No, answer my question.
[Defense Counsel]: Yes.
[The Court]: Okay. How many cases have you tried?
[Defense Counsel]: I’ve tried -- I don’t know the exact number.
[The Court]: Have you ever had a felony court do that to you?
[Defense Counsel]: I’ve had felony courts where we pulled jury
panels out of that day’s jury pool.
[The Court]: And in that situation the judge has always given you
the opportunity to review the questionnaires before they seat the
panel.
[Defense Counsel]: Yes, Judge.
3
[The Court]: So you came to court this morning thinking, here we
go, I mean, they’re here at 9:00 o’clock, we’re starting and I don’t get
the questionnaires?
[Defense Counsel]: Well, I received the questionnaires when I got
here this morning and I reviewed them to the --
[The Court]: Well, what I’m trying to say is, those questionnaires
were made available yesterday, and that’s all I’m going to say. They
were available yesterday. Your motion is denied.
No further objections were raised by either defense counsel or the State during
voir dire. A jury was empanelled and ultimately found Bancroft guilty of assault
causing bodily injury to a family or household member. The trial court sentenced
Bancroft to twenty-five years’ incarceration. This appeal followed.
In his sole issue, Bancroft argues that he was denied his rights to a fair trial
under both the state and federal constitutions and his right to effective assistance
of counsel. See U.S. Const. amend. V, VI, XIV; Tex. Const. art. I, §§ 10, 19.
Bancroft’s arguments are predicated on the notion that because the State
reviewed the written juror questionnaires the night before trial, he should have
been given ―a fair amount of time to review the [questionnaires] before
conducting voir dire.‖ This court interprets Bancroft’s issue as having three
distinct parts. First, it seems that Bancroft is arguing that, in violation of his due
process rights to a fair trial, the procedure employed by the trial court allowed the
State more time than he to examine the voir dire questionnaires. Second,
Bancroft argues that the trial court erred by not allowing him more time to
examine the questionnaires the morning of voir dire. Finally, Bancroft argues
4
that his not being allowed to examine the questionnaires further before voir dire
was tantamount to ineffective assistance of counsel. We disagree.
A criminal defendant has a constitutional right to trial by an impartial jury.
To be sure, voir dire plays a critical function in assuring the criminal defendant
that his constitutional right to an impartial jury will be honored. Morgan v. Illinois,
504 U.S. 719, 729, 112 S. Ct. 2222, 2230 (1992). ―[P]art of the guarantee of a
defendant’s right to an impartial jury is an adequate voir dire to identify
unqualified jurors.‖ Id. Thus, counsel must be diligent in eliciting pertinent
information from prospective jurors during voir dire in an effort to uncover
potential prejudice or bias, and counsel has an obligation to ask questions
calculated to bring out information that might indicate a juror’s inability to be
impartial. Brasher v. State, 139 S.W.3d 369, 373 (Tex. App.—San Antonio 2004,
pet. ref’d). To this end, defense counsel should not rely on written
questionnaires to supply any information that counsel deems material. See
Gonzales v. State, 3 S.W.3d 915, 917 (Tex. Crim. App. 1999) (―[W]ritten
questions are by nature vulnerable to misinterpretation.‖).
Furthermore, a 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);
Allridge v. State, 762 S.W.2d 146, 167 (Tex. Crim. App. 1988), cert. denied, 489
U.S. 1040 (1989). Without this discretion, voir dire could go on forever without
reasonable limits. Faulder v. State, 745 S.W.2d 327, 334 (Tex. Crim. App.
1987), cert. denied, 519 U.S. 995 (1996). We review a trial court’s denial of a
5
motion for continuance for an abuse of discretion. Janecka v. State, 937 S.W.2d
456, 468 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 525 (1997). When an
appellant contends that the denial of continuance rendered him unable to
adequately prepare for trial, appellant must establish specific prejudice to his
cause arising from the court’s ruling. Heiselbetz v. State, 906 S.W.2d 500, 511–
12 (Tex. Crim. App. 1995). The bare assertion that counsel did not have
adequate time to conduct pre-trial activities, absent a showing of specific and
serious harm to the defense, is insufficient to establish abuse of discretion. Id.
We first address Bancroft’s argument that his rights to a fair trial were
violated when the State was allegedly given more time to review the
questionnaires. There is simply no evidence in the record, other than Bancroft’s
bare assertion, that the trial court allowed the State to review questionnaires the
night before trial but not Bancroft. Bancroft made no offer of proof or otherwise
put on any evidence that his not picking up and reviewing the questionnaires the
night before, as the State did, was anything other than inadvertence on his part.
We hold that the record does not support that the State had any unfair advantage
or that the trial court’s process allowed an unfair advantage to the State. See
Burruss v. State, 20 S.W.3d 179, 186 (Tex. App.—Texarkana 2000, pet. ref’d)
(reasoning that there was no merit to appellant’s contention that trial court’s
process for jury voir dire violated defendant’s constitutional right to a fair and
impartial trial).
6
Furthermore, there is no showing in the record, nor does Bancroft allege,
how counsel would have conducted voir dire any differently. There is no showing
that counsel was denied the ability to intelligently and effectively exercise his
peremptory challenges. Also, the duty was defense counsel’s alone to question
jurors adequately and not rely on the written questionnaires. See Gonzales, 3
S.W.3d 915, 917. In short, Bancroft has failed to establish any specific prejudice
to his case arising from the court’s denial of his request for a continuance. See
Heiselbetz, 906 S.W.2d at 511–12.
Finally, Bancroft also couches his argument in terms of an ineffective
assistance of counsel claim. See Strickland v. Washington, 466 U.S. 668, 686,
104 S. Ct. 2052, 2064 (1984). To the extent that Bancroft brings an ineffective
assistance of counsel claim, we conclude that this argument fails also because
Bancroft has failed to demonstrate prejudice to his case by the trial court’s denial
of his request for additional time.3 See Conrad v. State, 77 S.W.3d 424, 426–27
(Tex. App.—Fort Worth 2002, pet. ref’d) (holding that appellant failed to show
prejudice; thus, his claim of ineffective assistance of counsel failed under
Strickland). We hold that the trial court did not err by denying Bancroft’s request
for additional time to review the juror questionnaires and that Bancroft has failed
to demonstrate that his defense was prejudiced by the trial court’s ruling. Having
3
Bancroft concedes that the Strickland test was not met and that ―[t]rial
[c]ounsel was certainly not ineffective.‖ Bancroft seems to argue that the trial
court’s ruling prevented him from having adequate time to prepare for trial.
7
rejected all of Bancroft’s arguments, we overrule his sole issue and affirm the trial
court’s judgment.
BILL MEIER
JUSTICE
PANEL: GARDNER, WALKER, and MEIER, JJ.
WALKER, J. filed a dissenting opinion.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: January 20, 2011
8
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00040-CR
TODD ALLEN BANCROFT APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
----------
DISSENTING MEMORANDUM OPINION4
----------
The majority holds that ―the record does not support that the State had any
unfair advantage or that the trial court’s process allowed an unfair advantage to
the State.‖ Because I cannot agree, I respectfully dissent.
The purposes of voir dire are (1) to develop rapport between the officers of
the court and the jurors, (2) to expose juror bias or interest warranting a
challenge for cause, and (3) to elicit information necessary to intelligently use
4
See Tex. R. App. P. 47.4.
peremptory challenges. Dhillon v. State, 138 S.W.3d 583, 587–88 (Tex. App.––
Houston [14th Dist.] 2004, pet. stricken); S.D.G. v. State, 936 S.W.2d 371, 380
(Tex. App.––Houston [14th Dist.] 1996, writ denied). A trial court may impose
reasonable restrictions on voir dire examination, including reasonable limits on
the amount of time each party can question the jury panel. Caldwell v. State, 818
S.W.2d 790, 793 (Tex. Crim. App. 1991), cert. denied, 503 U.S. 990 (1992),
overruled on other grounds by Castillo v. State, 913 S.W.2d 529 (Tex. Crim. App.
1995); Ratliff v. State, 690 S.W.2d 597, 597 (Tex. Crim. App. 1985). The
discretion of the trial court regarding control of voir dire is not limitless, however;
thus, the benefits achieved by accelerating the often lengthy voir dire process
―must never be attained at the risk of denying to a party on trial a substantial
right.‖ Caldwell, 818 S.W.2d at 793; Smith v. State, 703 S.W.2d 641, 645 (Tex.
Crim. App. 1985). Although time constraints on voir dire are a legitimate concern
of a trial court, the paramount concern in a case must be the appellant’s freedom
to intelligently exercise his peremptory challenges. Smith, 703 S.W.2d at 645.
The Sixth Amendment guarantees the right to a trial before an impartial
jury. Franklin v. State, 138 S.W.3d 351, 354 (Tex. Crim. App. 2004). The
constitutional guarantee of the right to an impartial jury includes adequate voir
dire to identify unqualified jurors. Id. Essential to the Sixth Amendment
guarantee of trial before an impartial jury is the right to question venire members
in order to intelligently exercise peremptory challenges and challenges for cause.
Id.
2
Here, the trial court and the State concluded their portions of voir dire at
10:40 a.m. on January 26, 2010. The trial court gave the jury a twenty-minute
break, instructing them to return at 11:00 a.m. Appellant Todd Allen Bancroft’s
counsel then informed the trial court that he had not been notified that the juror
questionnaires had been made available the night before, that the State had
obtained its copies of the questionnaires the night before, and that he had been
given his copies only that morning when he entered the courtroom; he requested
a brief recess until 2:00 p.m. to review the juror questionnaires. 5 Bancroft’s
counsel specifically informed the trial court that he had not had an adequate time
to review the questionnaires because he did not know and was not informed that
they were available the previous night, that the State had all evening to review
them, that he was placed at a disadvantage, and that ―this deprives [Bancroft] of
a fair trial under the state and federal constitutions as it puts the State at a
significant advantage.‖ The trial court denied Bancroft’s request for a three-hour
recess or for a two-hour recess if an hour-long lunch break was excluded. The
case took less than a day to try; the jury returned at 9:00 a.m. on January 27,
2010 for closing arguments and returned a verdict at 10:40 a.m. that morning.
Because the State obtained the juror questionnaires on January 25, 2010
and because Bancroft was not told or advised that he also could obtain them on
January 25, 2010, the State possessed and had time to assimilate information
5
The entire dialogue between Bancroft’s counsel and the trial court is set
forth in the majority’s opinion, so I do not repeat it here.
3
about the jury panel that Bancroft did not. Bancroft did not possess the
information until 8:30 a.m. on January 26, 2010. So the State had the juror
information at least fifteen and a half hours before Bancroft did (assuming the
State picked up the juror questionnaires at the latest possible moment, at 5 p.m.
on January 25).6 The State’s possession of juror information that was not
possessed by Bancroft and the trial court’s denial of Bancroft’s request for a brief
recess in voir dire in order to review the questionnaires constitute a due process
violation; the State possessed an unfair advantage in voir dire. See, e.g.,
Grijalva v. State, 614 S.W.2d 420, 424 (Tex. Crim. App. 1980) (holding, in death
penalty case, that State was given unfair advantage in the jury selection process
when the trial court allowed it to exercise peremptory strikes after entire panel
was questioned); Giron v. State, 19 S.W.3d 572, 576 (Tex. App.—Beaumont
2000, pet. ref’d) (―In an adversarial system due process requires at least a
reasonably level playing field at trial.‖).
I would hold that Bancroft was denied due process by not being afforded
the same opportunity to review the jury questionnaires as the State. Because I
am unable to determine beyond a reasonable doubt that this constitutional error
did not contribute to Bancroft’s conviction or punishment, I respectfully dissent.
See Tex. R. App. P. 44.2(a); see also Williams v. State, 958 S.W.2d 186, 194
(Tex. Crim. App. 1997) (finding constitutional error was harmful when error
6
The District Attorney’s office is located in the same building as the trial
court.
4
caused State to be more prepared for cross-examination than it would have
without the error).
SUE WALKER
JUSTICE
DO NOT PUBLISH
Tex. R. App. P. 47.2(b
DELIVERED: January 20, 2011
5