Alisha Marie Drake v. State

465 S.W.3d 759, 2015 Tex. App. LEXIS 4549, 2015 WL 2124361
Court of Appeals of Texas·Decided May 5, 2015·No. NO. 14-13-00855-CR·Published·Cited by 10 cases

Opinions

MAJORITY OPINION

Ken Wise, Justice

Following a jury trial, appellant Alisha Marie Drake was found guilty of the second-degree felony offense of sexual per[761]*761formance by a child, younger than fourteen years of age. Because the trial judge’s actions and remarks during the selection of the jury prevented a fair and impartial trial, we reverse and remand for a new trial.

BACKGROUND

On February 24, 2012, Jason Grant sexually assaulted his fourteen-month-old granddaughter at his house. Drake videotaped the assault on a cell phone and her voice could be heard on the video. When the police interviewed Drake, she admitted that she used her phone to videotape the assault. Drake told the police that Grant made her do it.

On May 17, 2012, Drake was charged by indictment with sexual performance by a child, younger than fourteen years of age. See Tex. Penal Code § 48.25. Drake pleaded not guilty to the allegation and the case proceeded to a trial by jury on August 26, 2013. During the voir dire examination of the jury panel, the trial judge introduced herself to the panel and provided a brief overview of the jury selection process and trial. The trial judge then allowed the prosecutor, Mr. Adam Poole, to begin asking the panel questions.

Mr. Poole began by asking the jurors about potential schedule conflicts and then started explaining that the case involved the charge of sexual performance by a child. The following exchange then occurred:

Mr. Poole: The Judge already mentioned this, but we are going to be talking about some personal things, and it might be some things that you don’t feel comfortable talking about in front of everybody. If you do, just make sure I get your number, say, “I would like to say it in private” or “I would like to say it to the Judge.” We are going to wait until both sides do our questioning and then we will call you up and then you will just have to talk about it in front of a few of us. Before I explain to you — the charge is sexual.performance of a child. Before I explain what thát is, because there is quite a bit of explanation to that, the short answer is we are talking about creating child pornography. So you can imagine that if this is a trial about creating child pornography, there is a good chance that if you are on the jury, you are going to have to look at child pornography. The immediate— all at once I saw simultaneous heads shaking. Nobody wants to do that, and there is nobody that’s going to do that without being affected by it. And, again, that’s okay. It’s expected. But if you are on this jury, you have to be able to do it. You cannot be excused just because it affects you and it horrifies you to see that. If so, like the Judge said, we would have no one on that jury. So this is a really sincere question, is that: Are you physically and emotionally incapable of doing that?
The Court: Mr. Poole, don’t ask that question because it doesn’t matter. I’m not going to excuse anybody for it.
Mr. Poole: Okay.
Yes, sir? Thank you for saving me with a question. Juror No. 48?
Juror No. 48: Yes. I just want to say one thing as far as my belief in God, as far as watching any kind of child pornography for a judicial or whatever kind of court. I mean, I cannot do that, so whatever you have to do, you just have to do it.
Mr. Poole: Are you saying it’s a religious reason?
Juror No. 48: Yes. And as far as any kind of case, any kind of child pornog[762]*762raphy or any of that, I mean, I will close my eyes, I will not allow my eyes to look at anything like that, period. So whatever you have to do, you just have to do it.
The Court: Here is the thing you have got to understand. Assuming— sometimes an accusation is made and the person didn’t commit a crime at all. They are wrong. The crime wasn’t committed. Sometimes an accusation was made and a crime was committed but it was a different person that committed it. There are different things that happen. But if you believe that a crime was committed and a child was hurt as a consequence, that child needs 12 people who have got it in them to come in here and look at the evidence and do what — if you believe in God, God wants you to protect the children.
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And if this happened, then there is a child who needs 12 adults to be big enough and strong enough to watch what they had to go through. So if that kid had to go through that, then adults can watch a film.
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So if it grosses you out, then you can take it out on the person in punishment because it can’t possibly gross you out more than it grossed out that child. So that’s what my God tells me.
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So you want to find out what I will do? You will find out what I will do. If you get on this jury and I order you to look at something, you' will get yourself locked up. So you want to find out what my God will tell me to do? Let’s test it, Buddy. Let’s test it.
Juror No. 48: Your Honor, I’m one of Jehovah’s Witnesses and I believe that Jehovah God is a Supreme Judge and it is not in my place to judge anyone else or to have, for that matter, for them to be—
The Court: All right. I understand that. We have Jehovah’s Witnesses all the time. But you know what? If you get picked on this jury, you get ■picked on this jury, and Jehovah can visit you in the jail.
Juror No. 48: Okay. Then—
The Court: Have a seat, sir.
Juror No. 48: I guess they have to visit me.
The Court: All right. Arrest him. Take him into custody. Take him into custody right now. I’m not playing. See you later.

The trial judge immediately had Juror No. 48 arrested in front of the entire jury panel.

Subsequently, 'another juror inquired about the situation with Juror No. 48, stating “I.believe the Judge said you are looking for people to be fair. You have a room full of 65 people. If someone has really strong feelings ...” The trial judge cut the juror off and explained the difficulty in selecting a jury for this type of case. The trial judge stated that she used to be a sex crimes prosecutor and that she “had a room this full on these kind of cases and not had enough to get to 12.” The trial judge then went into a detailed history of high-profile cases she presided over in the past to illustrate why getting twelve jurors was so challenging. The trial judge concluded by stating the following:

I know it seems like crazy, but what we don’t want to do is, what we hate to do is when we bring this many people in and it wasn’t enough and we have to start over again the next day with a whole other group of people. If we could let [763]*763people go, we would let people go, but we are not. And I’m not playing, and I don’t care if anybody likes it or not. That’s what we have to do and we are going to do that to pick this jury.

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Alisha Marie Drake v. State, 465 S.W.3d 759, 2015 Tex. App. LEXIS 4549, 2015 WL 2124361 (Tex. Ct. App. 2015).

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