ARTHUR DAVID LOWE v. HARRIS COUNTY DISTRICT CLERK (Other)

SUPREME COURT CASES

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State: Texas

Court: Criminal Court of Appeals

Docket No: WR-25,679-07

Case Date: 04/13/2011

Plaintiff: ARTHUR DAVID LOWE

Defendant: HARRIS COUNTY DISTRICT CLERK (Other)

Preview:Juan Arnulfo Villegas v. The State of Texas--Appeal
from 229th Judicial District Court of Starr County
MEMORANDUM OPINION
MEMORANDUM OPINION
No. 04-07-00109-CR
No. 04-07-00110-CR, and
No. 04-07-00111-CR
Juan Arnulfo VILLEGAS,
Appellant
v.
The STATE of Texas,
Appellee
From the 229th Judicial District Court, Starr County, Texas
Trial Court No. 06-CRS-18, 20 and 22
Honorable Alex W. Gabert, Judge Presiding
Opinion by: Rebecca Simmons, Justice
Sitting: Catherine Stone, Justice
Karen Angelini, Justice
Rebecca Simmons, Justice
Delivered and Filed: February 20, 2008
AFFIRMED
Appellant Juan Arnulfo Villegas was convicted of three counts of indecency with a child. On appeal, Villegas asserts
the trial court erred in failing to grant a mistrial on two separate occasions during voir dire and by allowing the State to
present witness testimony from a witness whose name did not appear on the State s witness list. We affirm the
judgments of the trial court.
Voir Dire
During general voir dire, the prosecutor asked [w]hat does a person look like who has been sexually abused? After
several responses from the venire panel, the prosecutor asked [w]hat does a person look like who has committed child
abuse? Sexual child abuse? What does that person look like? Anyone? One venire member replied Depressed, another
Withdrawn, another Normal, and then panel member 45 stood up and said Something like him, pointing at the
Defendant. Defense counsel immediately objected:
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Defense: Your Honor, I think that his outburst and pointing just tainted the
jury, Your Honor.
Court: Say it again.
Defense: His statement, his outburst.
He got up and said, Like him, and pointed to the Defendant.
He s already tainted. That s uncalled for, Your Honor. Just
tainted the whole pool right there.
After much discussion at the bench with panel member 45 regarding his actions and whether the remaining panel heard
the comment, the prospective juror was found in contempt of court and ordered jailed by the trial court. The deputy
then handcuffed the panel member and removed him from the courtroom in front of the jury panel. Defense counsel
again objected I think this outburst tainted the jury pool and ask[ed] for a ruling. The trial court overruled the
objection. Defense counsel did not ask for an instruction.
During the specific voir dire, a different prospective juror, number 28, relayed her opinion before the rest of the panel
that if they look guilty they are guilty . . . That s just it, so I don t think I would be, you know, fair for the Defendant.
Once again, defense counsel objected two times, requesting a mistrial, arguing that the jury pool had been tainted based
on the prospective juror s statements. The trial court overruled the objection. Defense counsel did not request an
instruction.
A. Standard of Review
Villegas alleges the trial court erred in failing to grant his motions for mistrial. An appellate court reviews a trial court
s overruling of a motion for mistrial under an abuse of discretion standard. Wead v. State, 129 S.W.3d 126, 129 (Tex.
Crim. App. 2004). Moreover, the trial court s ruling is upheld if it is within the zone of reasonable disagreement. Id.
B. Analysis
In this case, neither panel member 45 nor 28 was seated on the jury. Villegas argument is that their comments tainted
the panel members who heard the comments and ultimately served on the jury panel. The State argues that Villegas
failed to make timely objections or state the specific grounds for the objections. We disagree. During the first incident,
Villegas counsel stated I think this outburst tainted the jury pool. After asking for a ruling on his objection, the trial
court overruled the objection. During the second incident, defense counsel specifically requested a mistrial.
We, like the trial court, liberally construe defense counsel s objection to venire person 45 as a motion for mistrial.[1] In
the present case, the record clearly supports that defense counsel was seeking to quash the panel, and the trial court
understood his objection to be, a motion for mistrial. See also Mandrell v. State, No. 02-02-375-CR, 2004 WL
1416099 (Tex. App. Fort Worth 2004, no pet.) (in determining that error was preserved, held [l]iberally construing
Appellant's objection at trial, we hold that Appellant sufficiently apprised the trial court that he was making a
constitutional challenge to the legality [of the stop] ).
The State argues that even if Villegas requested mistrials, his appeal fails because he did not first request an instruction
that would have cured any error resulting from the jurors comments. In Young v. State, 137 S.W.3d 65, 70 (Tex. Crim.
App. 2004), the court determined that a defendant may preserve error by moving for a mistrial without requesting an
instruction to disregard if the instruction could not have cured the harm. The Young Court explained that a request for
an instruction is essential only when the instruction could have had the desired effect, which is to enable the
continuation of the trial by an impartial jury. The party who fails to request an instruction to disregard will have
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forfeited appellate review of that class of events that could have been cured by such an instruction. Id. Thus, we must
determine whether an instruction would have cured any harm or prejudice resulting from either of the potential jurors
statements.
In making such a determination, we look at each remark on a case-by-case basis and ask whether these objectionable
events are so emotionally inflammatory that curative instructions are not likely to prevent the jury from being unfairly
prejudiced against the defendant. Id. Here, both panelists comments were made in open court and recorded by the court
reporter. Because both venire members 45 and 28 were sitting with the other members of the panel when they made
their remarks and the exchanges were sufficiently audible for the court reporter to record, we can reasonably infer that
other members of the panel heard the prospective jurors remarks. Thus, the issue is whether the remarks were so
emotionally inflammatory that the seated jurors were influenced to the prejudice of the defendant.
The record is simply devoid of evidence that any juror on the panel was prejudiced or that any other juror held a
similar opinion as either of the prospective jurors who made the statements. The fact that venire member 45 was
handcuffed and led away from the courtroom in contempt clearly indicated the court s displeasure with the opinion
expressed by venire member 45. Even without an instruction, the other jurors could have reasonably drawn on their
own experiences to know that individuals who commit child abuse do not all look alike. Another venire member
responded that a child abuser would look normal immediately before venire member 45 made his comment.
Furthermore, it does not seem probable that remaining members of the panel would have been so persuaded by the
panelists statements to make them incapable of drawing their own conclusions. Johnson v. State, 43 S.W.3d 1, 5-6
(Tex. Crim. App. 2001).
In Young, the defendant was convicted of aggravated sexual assault of a child and the testimony and credibility of the
child were central to the case. Young, 137 S.W.3d at 71. During voir dire, a potential juror stated that, during her
twenty-five years as a social worker, she had never had a child lie about being sexually assaulted. Id. at 67-68. The
Court opined that even without an instruction from the court, it seems probable that other members of the venire,
drawing on their own experiences regarding the truth-telling tendencies of young children, would question the veracity
of [the prospective juror s] statements that she had never known a child with whom she worked to lie. Id. at 71. Our
analysis is no different. Like the Court of Criminal Appeals, we decline to assume that jurors are so easily prejudiced.
Finally, assuming arguendo, that other potential jurors were prejudiced by the remarks, there is no evidence from
which we can infer that one of those jurors actually served on the Villegas jury. Therefore, the trial court did not abuse
its discretion in denying Villegas motions to quash and motion for mistrial and his first two appellate issues are
overruled.
Surprise Witness
Villegas next asserts that the trial court erred when it allowed Maria Villegas Ramirez, Villegas older daughter, to
testify because her name did not appear on the State s witness list. Defense counsel made several objections to Ramirez
s testimony, all of which were based on notice and surprise. Villegas asserts that he filed a motion for discovery of the
State s witness list on February 22, 2006, along with a plethora of other pre-trial discovery motions.
The State filed a State s witness list on July 24, 2006 that did not include Ramirez s name. Two days later, however,
the State filed a notice of intent to use evidence of other crimes, wrongs or acts which did include Ramirez s name,
with a stated offense of indecency with a child, allegedly committed in 1999. On July 27, 2006, the State s First
Amended Witness List identified Ramirez as a State s witness and provided her address. Villegas cases were called to
trial on August 1, 2006.
Importantly, however, the failure to request a postponement or seek a continuance waives any error urged in an appeal
on the basis of surprise. Barnes v. State, 876 S.W.2d 316, 328 (Tex. Crim. App. 1994); see also Lindley v. State, 635
S.W.2d 541, 544 (Tex. Crim. App. [Panel Op.] 1982); Mock v. State, 848 S.W.2d 215, 222 (Tex. App. El Paso 1992,
pet. ref d). Both Lindley and Mock present situations where the State offered evidence it allegedly failed to provide
after a pre-trial discovery order was entered by the trial court. In Lindley, the trial court admitted statements of the
accused that the State failed to provide to the defense. Lindley, 635 S.W.2d at 543. In Mock, the trial court permitted
the State to present an undisclosed witness testimony. Mock, 848 S.W.2d at 222. Both courts held any error was
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waived based on defense counsel s failure to seek a continuance. Lindley, 635 S.W.2d at 544; Mock, 848 S.W.2d at
222. Villegas counsel objected based on surprise and lack of notice, but he failed to seek a continuance from the trial
court. Accordingly, Villegas failure to seek a motion for continuance waives his complaint on appeal.
Even assuming the State did not provide Ramirez name in a timely fashion, in evaluating whether a court abuses its
discretion, in allowing a witness not included on the witness list to testify, courts look at (1) whether the State acted in
bad faith and (2) whether the defense could reasonably anticipate the testimony of the undisclosed witness. Hightower
v. State, 629 S.W.2d 920,925 (Tex. Crim. App. 1981). There is no evidence that the State acted in bad faith and, as the
State suggests, Villegas could have reasonably anticipated that Ramirez would testify. See Martinez v. State, 131
S.W.3d 22, 28-30 (Tex. App. San Antonio 2003, no pet.) The State s July 26, 2006 notice of intent to use evidence of
other crimes, wrongs or acts included Ramirez s name, with a stated offense of indecency with a child, allegedly
committed in 1999. As such, the defense could have reasonably anticipated that the State would call Ramirez in order
to prove this allegation. We, therefore, overrule this issue on appeal.
Rebecca Simmons, Justice
[1] Texas Rule of Appellate Procedure 33.1(a) provides:
(a) In General. As a prerequisite to presenting a complaint for appellate review, the record must show that:
(1) the complaint was made to the trial court by a timely request, objection, or motion that:
(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to
make the trial court aware of the complaint, unless the specific grounds were apparent from the context;
Tex. R. App. P. 33.1(a).
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