COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

DAVID MORALES,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.
No. 08-05-00201-CR

Appeal from the

409th Judicial District Court

of El Paso County, Texas

(TC# 960D06482)

O P I N I O N

David Morales was indicted for one count of aggravated sexual assault of a child and one count of indecency with a child. A jury found him guilty of both offenses and assessed punishment at 35 years� imprisonment for the aggravated sexual assault of a child offense and 20 years� imprisonment for the indecency with a child offense. On appeal, Appellant argues the trial court erred in denying his challenge for cause against a prospective juror. He also argues the trial court erred in denying his motion for new trial, in which he raised an ineffective assistance of counsel claim on the grounds that counsel�s failure to exercise a peremptory challenge against the prospective juror and to properly preserve error of the challenge for cause. We reverse and remand.
On May 18, 1996, six-year-old E.O., the complaining witness, attended a Holy Communion celebration at the home of Appellant. E.O. encountered Appellant in the kitchen and he took her to the bathroom. In the bathroom, Appellant put E.O. on his lap and began touching her vagina with his index and middle fingers. He also inserted his fingers into E.O.�s vagina. Appellant was interrupted when one of E.O.�s friends opened the bathroom door. A month later, E.O. made an outcry of sexual abuse to her mother.
CHALLENGE FOR CAUSE
In Issue One, Appellant contends the trial court erred in overruling his challenge for cause against venireperson Robyn Wyatt. Specifically, Appellant asserts that Ms. Wyatt, who was then employed as a prosecutor by the District Attorney�s Office of El Paso County was subject to challenge under Article 35.16(a)(9), in contravention to his right to a fair trial by an impartial jury.
During voir dire, Appellant challenged venireperson Robyn Wyatt for cause, arguing that Ms. Wyatt was automatically excluded because, as a prosecutor for the District Attorney�s Office, she was a party to the suit and disqualified under Article 35.16. To preserve error on the trial court�s denial of a challenge for cause, an appellant must: (1) assert a clear and specific challenge for cause; (2) use a peremptory strike on the complained-of venireperson; (3) exhaust all his peremptory strikes; (4) request additional strikes; (5) identify an objectionable juror; and (6) claim that he would have struck the objectionable juror with a peremptory strike if he had one to use. Allen v. State, 108 S.W.3d 281, 282 (Tex.Crim.App. 2003); Feldman v. State, 71 S.W.3d 738, 744 (Tex.Crim.App. 2002). Appellant did not exercise one of his peremptory strikes on venireperson Robyn Wyatt. Therefore, he has failed to preserve error on the trial court�s denial of his challenge for cause of that venireperson. Issue One is overruled.

INEFFECTIVE ASSISTANCE OF COUNSEL
Within Issues Two and Three, Appellant asserts his trial counsel rendered ineffective assistance by failing to preserve error on the denial of his challenge for cause against venireperson Wyatt, which resulted in not seating an impartial jury and denied his right to a fair trial under Tex.Const. art. I, � 15.
To prevail on an ineffective assistance of counsel claim, a defendant must show: (1) counsel�s performance fell below an objective standard of reasonableness; and (2) there is a reasonable probability that but for counsel�s deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Rodriguez v. State, 899 S.W.2d 658, 664 (Tex.Crim.App. 1995).
In reviewing an ineffective assistance of counsel claim, we must indulge a strong presumption that counsel�s conduct falls within the wide range of reasonable professional assistance and the appellant must overcome the presumption that the challenged conduct might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). Any allegation of ineffectiveness must be firmly founded and affirmatively demonstrated in the record to overcome this presumption. Thompson, 9 S.W.3d at 813. When faced with a silent record as to counsel�s strategy, this Court will not speculate as to the reasons for counsel�s actions. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). It is the defendant�s burden to prove ineffective assistance of counsel by a preponderance of the evidence. Thompson, 9 S.W.3d at 813.
Here, Appellant filed a motion for new trial, alleging jury misconduct and ineffective assistance by his trial counsels, attorneys Charles Roberts and Angelina Lugo, for their deficient performance during voir dire. At the hearing, Mr. Roberts testified that he was lead counsel in Appellant�s trial and has been practicing criminal law for thirty years. Mr. Roberts was familiar with the procedure for preserving error when a challenge for cause has been denied and had used that procedure numerous times. Specifically, Mr. Roberts stated that in this case, he should have exercised a peremptory challenge on venireperson Robyn Wyatt and requested additional peremptory challenges on two other objectionable venirepersons. Mr. Roberts testified that the decision to leave venireperson Wyatt on the jury was made in a vacuum and that he made the mistake of never looking at her juror questionnaire because he had decided that she would be struck anyway. Mr. Roberts stated that he and Ms. Lugo did not look at venireperson Wyatt�s jury questionnaire until after the verdict. If he had seen that she had been a victim of indecent exposure, that her father was a thirty-three-year police veteran, and that many of her friends and associates were in law enforcement, he would have never let her on the jury. Mr. Roberts testified that there was no strategic reason or purpose for leaving venireperson Wyatt on the jury. He believed that his mistake constituted ineffective assistance which deprived his client of a fair and impartial jury and resulted in a conviction and thirty-five year sentence. On cross-examination, Mr. Roberts agreed that he knew that venireperson Wyatt was still a qualified juror who had not been struck for cause when his motion was denied and knew that she could have been struck with one of the ten peremptory strikes he had been given, but he chose not to.
Angelina Lugo testified that she has practiced law for about seven years and acted as co-counsel in Appellant�s defense. She was present during jury selection and knew that Mr. Roberts� challenge for cause against venireperson Wyatt was denied, but was not familiar with the procedure for preserving error on the denial of a challenge for cause. Ms. Lugo saw venireperson Wyatt�s name on the juror sheet on the evening before voir dire and knew that Ms. Wyatt was a prosecutor. She did not read Ms. Wyatt�s juror questionnaire because she assumed they would strike Ms. Wyatt. The first time she examined the juror questionnaire was after the verdict on punishment. According to Ms. Lugo, there was no strategic reason for leaving venireperson Wyatt on the jury and it was grossly ineffective assistance because the error caused the verdict of guilt and punishment.
The State called the Honorable Judge Sam Medrano, Jr. of the 409th Judicial District Court of El Paso County to testify. Judge Medrano, who had not served as the presiding judge in Appellant�s trial, recalled that at some point while the jury was deliberating in the guilt-innocence phase of trial, Mr. Roberts came into his chambers and struck up a conversation with him about why the jury had been deliberating so long. Judge Medrano replied that when a prosecutor is the presiding juror, he would assume that it was going to take a while before the jury would come back with questions or a verdict. Mr. Roberts indicated to him that it was a decision on defense counsel�s part to leave Ms. Wyatt on the jury because there was another prospective juror that they felt they needed to strike more than Ms. Wyatt and that Ms. Wyatt was a prosecutor that they had dealt with who was as fair a prosecutor as they had ever dealt with and they felt comfortable with her being a juror in this case. The judge explained that by this time the entire courthouse knew that a prosecutor was the presiding juror in this case and that he understood Mr. Roberts to be conveying to him that he knew that too and that it was a decision he made to leave her on the jury.
On cross-examination, Judge Medrano testified that he had no discussion with Mr. Roberts about whether or not he looked at venireperson Wyatt�s juror questionnaire. Judge Medrano stated that in the process of preparing for and doing a jury selection, a lawyer is supposed to read the juror questionnaires and is not properly prepared if he fails to do so. Judge Medrano testified that the only way he would leave a defense lawyer or a prosecutor on a jury was if he knew the person very, very well or had a friendship with the person. Based on venireperson Wyatt�s responses in her questionnaire, Judge Medrano stated again that the only reason he would leave someone with her questionnaire was if he had some personal insight into that person that was not included in the questionnaire.
When Mr. Roberts was re-called to testify, he explained that he was being defensive in his conversation with Judge Medrano because he was receiving a lot of comments that basically he was insane to leave Robyn Wyatt on the jury. He still had not read the juror questionnaire and was trying to give an explanation for his actions. Mr. Roberts testified that he was being less than candid to Judge Medrano and only made those statements in order to defend himself and his professional integrity.
Under Article 35.16, a juror is subject to a challenge for cause if that juror has a bias or prejudice in favor or against a defendant. See Tex.Code Crim.Proc.Ann. art. 35.16(a)(9) (Vernon 2006). Appellant asserts that venireperson Wyatt should have been stricken for cause because her employment as an Assistant District Attorney for the El Paso District Attorney rendered her partial and biased under the implied bias doctrine. Appellant argues that allowing a lawyer who prosecutes cases for the prosecutor agency is apparent and obvious bias and resulted in the denial of his constitutional right to a fair trial and impartial trial. See U.S. Const. amend. VI; Tex.Const. art. I, � 10.
Whether a juror�s partiality may be presumed from the circumstances is a question of law. Ruckman v. State, 109 S.W.3d 524, 528 (Tex.App.--Tyler 2000, pet. ref�d). The United States Supreme Court has never explicitly adopted or rejected the implied bias doctrine. Id. In Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982), Justice O�Connor writing in a concurring opinion, provided examples of extreme situations that would justify a finding of implied bias to avoid a miscarriage of justice: �Some examples might include a revelation that the juror is an actual employee of the prosecuting agency . . . .� Strickland, 455 U.S. at 222, 102 S.Ct. at 948. Justice O�Connor further stated, �[w]hether or not the state proceedings result in a finding of �no bias,� the Sixth Amendment right to an impartial jury should not allow a verdict to stand under such circumstances.� Strickland, 455 U.S. at 222, 102 S.Ct. at 949. We are now presented with the very �extreme� situation which gave Justice O�Connor such grave concern.
The State points out that during voir dire, venireperson Wyatt stated that she could be fair and impartial despite her background as a prosecutor and her knowledge of the State prosecutors, investigators, law enforcement, the judge, and defense counsel. �The doctrine of implied bias is limited in application to those extreme situations where the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances.� Ruckman, 109 S.W.3d at 528, citing Person v. Miller, 854 F.2d 656, 664 (4th Cir. 1988). While venireperson Wyatt may have believed she could set aside her status as an employee of the prosecuting agency, even a well-meaning person would find it difficult to remain impartial under such circumstances and most likely would be unconsciously blinded by otherwise good intentions. It is fair to say that venireperson Wyatt may believe herself to be fair and impartial, but nevertheless she should have been disqualified in the interest of justice. It is of fundamental importance that: �[J]ustice should not only be done but should manifestly and undoubtedly be seen to be done.� Because venireperson Wyatt was disqualified from serving as a juror for her implied bias as a matter of law, Appellant�s trial counsel rendered wholly deficient performance by failing to preserve the error of the denial of his challenge for cause. Further, we find that counsel�s deficient performance resulted in a trial before a partial jury, which prejudiced the defense. Finding that Appellant was denied effective assistance of counsel, we sustain Issues Two and Three.
We reverse the judgment and remand the cause for a new trial.


March 1, 2007
DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Carr, JJ.

(Publish)

I actually served on two JP Class "C" speeding ticket juries a year or so back. I thought I was totally fair and impartial. Both cases involved pro se defendants and guilt really wasn't much of an issue. Each defendant more or less admitted to speeding and the only dispute was just how much they were speeding. The first defendant was a nice lady who really tried hard to present her case in a professional manner with pictures and witnesses. She had apparantly missed a slower speed limit sign and failed to slow down. We found her guilty but gave her a huge break on her fine--something like $25 plus court costs.

The second guy was a real jerk and we tagged him pretty good.

All in all I thought it was an interesting experience. I took my oath seriously and thought I performed my service in a totally objective and impartial manner.

I think the key is, the juror in question was an employee of the prosecuting agency. Surely the court is not saying no prosecutor may ever sit as a juror in a criminal case merely because she may be biased toward law enforcement. I too like to think my ability to fairly be a judge of the facts would not be affected just by virtue of my current employment or avocation. After all, don't we try to put ourselves in the shoes of a fair-minded juror all the time in assessing whether a case should go forward?

But also look at the information contained in her juror questionaire and the type of case that was being prosecuted - I think there are more aspects to this than just the bare fact that she was a prosecutor in that same office. Even DA's within the same office disagree on the strength of cases; happens all the time. But this case seems to contain some extenuating circumstances. That being said, I would, however, feel very uncomfortable being left on a jury for a case that came out of my own office.

I am a LEO, and was summond as a juror a few weeks ago.

I thought o.k I will show up and go home. No dice.

So out of 500+ of us they tell 160-150 of us to come back later. I get to be one of the 150+ to show back up, and its a Capital Murder case.

Answer all the questions, and I figure thats it.....and guess what?

I get a call to show back up again for the final cut.

Monday or Tuesday I should get the call as to what happens.........

I would have said not a chance in hell they would pick me. But now after a few trips to the Court House and the time in front of the Judge and Counsel I have to wounder what is going on.......

Its funny as I wanted to just go home the first day (even more so when they said it was a Capital Case), and now a few weeks later I wounder what it would be like to sit as a juror on a Capital Case. I feel I can be fair, but why have a LEO on a Capital Murder case when there are many others to pick from to get the 14 jurors ???

Should I have been gone from day one?

I agree with Gretch, being able to be fair is one thing if its "just" a criminal case, but one that comes out of your own office, that puts an entirely different spin on it for me. Not that I wouldn't try my best to be fair and impartial, but just the appearance of impropriety is off the scale in that scenerio.

On the other hand its certainly not the prosecutor's fault, she couldn't excuse herself, and its not beyond the pale that it was "strategy" on the defense attorney's part, gave him an instant point of appeal didn't it !

What about my buddies who were ADAs but now work for civil firms? Is their presumed bias removed when they leave the DA's office? I can see the situation where the ADA is hearing a case from the same office, but what about the situation where, like me, I live in one county and work in another? Could the same be said for police officers? I don't think so. I've had retired police investigator be the lone holdout (11 for guilty -1 for not-guilty) before. In that case, the defense lawyer certainly knew that the juror was a retired investigator, and he deliberately left him on the jury because he thought he would find the investigation to be done poorly. (Turns out the retired officer and the defendant probably had some similar deviant behavior - but that's another story.)

Here's the real question - Will the same rule apply to defense lawyers? Wouldn't they be equally biased per se against the prosecution cases?

The last time my dad had jury duty the defense lawyer asked the question regarding having a relative in law enforcement. Dad answered that he had a son that is a felony prosecutor in East Texas. The next question was, "Does he ever talk about his work?" Dad truthfully answered, "He says he has never prosecuted an innocent person in his life!"

The judge thanked my dad for his time.

We have had a judge excuse for cause police officers and probation officers even though they said they could be fair and impartial. This was especially shocking because the police officer was an internal affairs officer who has to be unbiased regarding police officers in order to do his job.

Are criminal defense attorneys routinely stricken for cause?

if the defendant were represented by their partner, i would think so.

I agree with just about everything that has been said. If in the same office, I think the mere appearance would be enough.
As for the story about leaving a retired officer on the jury and the likely reasoning, I was thinking the same thing. I think the from the hip answer would be that of course they would be biased towards law enforcement. But on the other hand, and this applies to attorney's as well, how many could actually remove themselves and not look with a critical eye? Look for the percieved flaws in the case that is being presented? From both sides. Prosecutors think how they would have done it - what order of the witnesses, order of questions, I wouldn't have asked that and instead save it for summation. I would think that officers would look at the performance of the investigating/arresting officer with a more critical eye.
Finally, while I don't think it's always so automatic that a cop/prosecutor/defense attorney, etc. absolutely can't be fair and impartial, if I worked out of the same office, I'd hate to be the prosecutor that showed up for work on Monday after finding a defendant Not guilty on friday b/c I didn't think the prosecutor proved his or her case beyond a reasonable doubt. (Especially since we never prosecute innocent people).

I agree with Stacey - it looks like a strategy, doesn't it? This happened to me in a case. After conviction, the defendant's attorney fell on the sword and said he should have struck a supposedly law-enforcement friendly juror. The judge agreed and ordered a new trial. Ruling was upheld in State v. Garza, 143 S.W.3d 144 (Tex.App.-San Antonio Jun 02, 2004) (NO. 04-03-00488-CR), petition for discretionary review refused (Nov 17, 2004). To add insult to injury? the defendant claiming ineffective assistance of counsel was a criminal defense attorney himself.

I agree that it would be very tough to sit on a jury where the case came out of your own office. But outside of that scenario, I think the word "biased" gets thrown around loosely. We give a lot of people sweet deals based on the circumstances of that particular case--or the particular background, and I'm sure every office has elected not to proceed on cases because of no probable cause or a reasonable suspicion issue.

If prosecutors as a whole because of their jobs could not fairly sit on a jury, how can we possibly be given the discretion to have every other defendant that comes across our desk arrested on our oath to uphold the constitution and our ethical duty not file a case lacking probable cause? If we were automatically biased wouldn't we file every case and ask for the maximum every time?

You're right, SMJ, the nature of the job is that we use judgement all the time in determining whether to charge, what to charge, and what to plea bargain for or go to trial on. I think prosecutors as a group, would tend to make truly outstanding jurors. For that very reason, defense attys almost never want one of us on a panel.

I think a lot of defense attys would also make outstanding jurors. They are less likely than most to be bamboozled by a bogus argument, because they deal up close and personal with criminals. I know one def. atty. who ended up on a criminal jury who kept the panel from voting "not guilty," and finally got everyone to agree to a guilty vote.

But many def. attys really are biased against the state. Unlike prosecutors, who must decide whether or not to prosecute, def. attys. only defend. Some of them come to have an emotional attachment to defending crooks, and develope a rather grandiose view of themselves as protectors of the beleagured oppressed. Some even come to despise police and prosecutors, and can act pretty irrationally. They are a good reason all prosecutors should keep their rabies shots up to date.

I had a criminal jury trial on one occasion where Stuart Kinard, a well-known DWI defense attorney, was on the panel. I had had several cases against him prior to that, but during the voir dire, I just got a good feeling that he would be a better juror than I had originally assumed. I left him on, and got a conviction. I'm sure there are any number of anecdotes out there like mine, which only prove the point that an attorney has to make the judgment during the voir dire as to what type of juror an individual will be. We all make strikes based on stereotypes, because we don't have time to get to know everyone on a panel. But when we choose not to strike someone, that is often because we've observed that the person doesn't fit into the stereotypes that these courts seem to think should apply as a matter of law.

The only time I have ever been on a jury was right after I was elected (but before I took office). The DA made a huge deal during voir dire about the fact that I would be county attorney come January, and I really thought I would be struck. I suspect that the defense lawyer left me on because she thought I might be a moderating force. I think the DA probably had suspicions otherwise, since he had worked with me and the defense lawyer had not. The defendant pleaded guilty to aggravated sexual assault of a child (about 4, if I remember), and asked for probation. He got 65 years. If you are an attorney, you will probably be elected foreman.

The CCA has granted review of the decision in Morales, so maybe we will more about how potential bias plays out in jury selection.

For the majority CCA opinion, click here.

For an interesting concurring opinion by Judge Womack, click here.

So, was it worth all that trouble or should the State have agreed to dismiss the prosecutor/juror?

I agree that the better approach is to agree with the challenge for cause. Also, from the look of the opinion, I get the impression that if the error ever gets preserved, the CCA is going to hold that implied bias makes the challenge for cause necessary.

That said, given the timing of events, I imagine the prosecutors fought the challenge not to get the prosecutor on the jury, but because they expected the defense to have to burn a strike. So, I'm not willing to castigate the folks trying the case.

And I imagine that I'll be quick to defend them when blogtaters who are predisposed to distrust prosecutors seek to paint them as overly zealous.