Clifford John Schleicher v. The State of Texas--Appeal from County Crim Ct No 1 of Tarrant County

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State: Texas

Court: Texas Northern District Court

Docket No: 10-97-00370-CR

Case Date: 10/21/1998

Plaintiff: Clifford John Schleicher

Defendant: The State of Texas--Appeal from County Crim Ct No 1 of Tarrant County

Preview:Clifford John Schleicher v. The State of Texas--Appeal
from County Crim Ct No 1 of Tarrant County
Clifford John Schleicher v. State /**/
IN THE
TENTH COURT OF APPEALS
No. 10-97-370-CR
CLIFFORD JOHN SCHLEICHER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the County Criminal Court No. 1
Tarrant County, Texas
Trial Court # 0636236
O P I N I O N
Appellant Schleicher appeals his conviction for driving while intoxicated, for which he was sentenced to 120 days in
the county jail, probated for two years, and fined $550.
Police officers stopped Appellant because he was driving erratically. The officers smelled alcohol on Appellant and
had him perform several field sobriety tests, which he failed. He was arrested and charged with DWI.
At trial, a jury found Appellant guilty. He elected to have the court assess punishment. The court assessed punishment
at 120 days in the county jail, probated for two years, and a fine of $550.
Appellant appeals on one point of error: The trial court erred in granting the State s challenge for cause to venireman
James Moore because he was willing to follow the law on proof beyond a reasonable doubt.
During voir dire of the jury panel by the State the following occurred:
STATE: If you hear evidence from the witness stand and you are convinced in your mind after you have heard all the
evidence, you are convinced that the person has lost their physical faculties beyond a reasonable doubt, you are
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convinced of that, would you still find him not guilty?
MOORE: No.
STATE: Okay, so you could follow the law?
MOORE: Yeah.
MOORE: 25 years ago I had a DWI.
STATE: Was that in this county?
MOORE: No, Dallas.
STATE: Do you think you were treated fairly?
MOORE: No.
STATE: Let me ask you this. Because you had that experience you said in Dallas County?
MOORE: Uh-huh.
STATE: Do you think you can be fair in this type of case? Or do you think you are going to start out especially since
you said you felt like you were not treated fairly--
MOORE: Right.
STATE: Do you think you might start out favoring the defense a little more?
MOORE: I don t know about that. I have trouble with 12 people some that doesn t never had a drink in life trying to
make that kind of decision. Of course, I never did go to court.
STATE: Alright, you never went to court.
MOORE: No, no accident or nothing.
STATE: Were you just pulled over and an officer thought you were intoxicated?
MOORE: Yeah.
STATE: Okay, well really this I am not trying to be picky, but we have to have a yes or no answer. Because of that--
MOORE: I wouldn t let that you know, each thing stands on its own. I just don t think mine was good.
STATE: But you can just sit and listen to the evidence in this case?
MOORE: Sure.
STATE: Let me ask you this: Are you going to start out looking at the officer with a skeptical eye? Or could you start
an officer out, you know, even with a even with any other witness? Or would you start out making the officer have to
prove himself a little more?
MOORE: I might make him prove himself.
STATE: So you wouldn t start an officer out, say, as even as--
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MOORE: I mean, I m not trying to be unfair.
STATE: No, no.
MOORE: It s just I got a bad taste in my mouth about it.
STATE: Okay, all right, I appreciate it. Is there anything else about that?
MOORE: No.
Outside the presence of the panel the State challenged Mr. Moore:
STATE: Okay, your honor, the State challenges for cause juror panel member No. 8, James Moore, because he said
that he had had an experience with a DWI, that he didn t think he was treated fairly, and as a result he didn t feel like
he would be able to start an officer out with the same credibility he could start out any witness, that he would actually
start an officer out below and make the officer prove himself. And so, the State feels that Mr. Moore would be starting
out favoring the defense and starting him out above the State. And we challenge for cause on those grounds.
The trial court granted the challenge.
A challenge for cause may be made to a venireman who has bias or prejudice in favor of or against the defendant. Tex.
Code Crim. Proc. art. 35.16(a)(9). A bias against the State is equivalent to a bias in favor of the defendant. Smith v.
State, 907 S.W.2d 522, 529 (Tex. Crim. App. 1995). A juror s bias need not be proven with unmistakable clarity in the
record. Goodwin v. State, 799 S.W.2d 719, 731 (Tex. Crim. App. 1990). The correct standard of review is whether
there was sufficient evidence to sustain the trial court s implied findings of fact. Id. Great deference should be accorded
the trial court which, unlike the appellate court, is in the best position to observe the juror s demeanor and vocal
inflections in determining whether the juror is biased. Pierce v. State, 777 S.W.2d 399, 404 (Tex. Crim. App. 1989).
Mr. Moore stated he had been arrested for drunk driving. He stated that he had not been treated fairly. When the State
asked him if he might favor Appellant in this case, Mr. Moore answered, I don t know about that. Although Mr. Moore
stated he could just sit and listen to the evidence in the case, he did not give a clear answer to the question how he
would weigh the testimony of a police officer as compared to other witnesses. The most definite thing he could say
was, It s just I got a bad taste in my mouth about it.
The trial court did not abuse its discretion in impliedly finding that Mr. Moore harbored bias in favor of Appellant, and
did not abuse its discretion in sustaining the State s challenge for cause to Mr. Moore.
Appellant s point is overruled. The judgment is affirmed.
FRANK G. McDONALD
Chief Justice (Retired)
Before Justice Cummings,
Justice Vance and
Chief Justice McDonald (Retired)
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Affirmed
Opinion delivered and filed October 21, 1998
Do not publish
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