Flores, Felix

• Court: Court of Appeals of Texas
• Decided: October 22, 2015
• Docket: PD-1377-15
• Status: Published

Opinion

/ 377-/5 NO.

ORIGINAL IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

RECEIVED IN FELIX FLORES, Appellant COURT OF criminal APPEALS OCT 22 2015 V.

THE STATE OF TEXAS

PETITION FOR DISCRETIONARY REVIEW

No. 2013-CR-10149 § No. 04-15-00172-CR § DISTRICT COURT § COURT OF APPEALS § § FOURTH SUPREME 290™ JUDICIAL DISTRICT § JUDICIAL DISTRICT

FILED IN FELIX FLORES COURT OF CRIMINAL APPEALS TDCJ NO. 1990293 OCT 22 2015 Garza West 4250 Highway 202 Abel Acosta, Clerk Beeville, Texas 78102 Appellant Pro Se Table of Contents Page Index of Authorities

Statement Regarding Oral Argument

Statement of the Case

Statement of Procedural History

Grounds for Review Ground No. 1

THE COURT OF APPEALS ERRED IN ITS RULING THAT THE TRIAL COURT DID NOT ERR IN ADVISING JURORS THEY HAD A RIGHT TO DISAGREE WITH THE LAW

Ground No. 2

THE COURT OF APPEALS ERRED IN ITS RULING THAT THE APPELLANT WAIVED ERROR ON STRIKING JUROR 25

Argument Ground No. 1

Certificate of Service

Court of Appeals Opinion i. Index of Authorities

Page

Page Cases Anderson v. State, 633 S.W.2d 851, 853 (Tex. Crim. App. 1982)

Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824 (1967)

Franklin v. State, 986 S.W.2d 349 (Tex. App.—Texarkana 1999)

Franklin v. State, 12 S.W.3d 437, 479 (Tex. Crim. App. 2000)(Franklin I) ..

Franklin v. State, 23 S.W.3d 81, 83 (Tex. App.—Texarkana 2000)

Franklin v. State, 138 S.W.3d 351 (Tex. Crim. App. 2004)(Franklin II).

Feldman v. State, 70 S.W.3d 738, 744 (Tex. Crim. App. 2002)

Howard v. State, 941 S.W.2d 102, 108 (Tex. Crim. App. 1996)

Howard v. State, 333 S.W.3d 137, 139-140 (Tex. Crim. App. 2011)

Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. App. 2004)

n. Statutes and Constitutions

TEX. CODE CRIM. PROC. art. 35.16(b)(3) & (c)(2)

TEX. CONST, art. 1, § 10

TEX. CONST, art. 1, § 15

TEX. R. APP. PROC. 44.2(a)

in. IN THE COURT OF CRIMINAL APPEALS

FELIX FLORES, Appellant

V.

TO THE HONORABLE JUDGES OF THE TEXAS COURT OF CRIMINAL APPEALS.

Oral argument is waived.

A Bexar County Grand jury indicted appellant Felix Flores on three

counts of aggravated robbery and a repeater enhancement in Cause No.

2013-CR-10149 (CR 5-6). An initial trial began June 23, 2014, but it

resulted in a mistrial on June 24, 2014 (CR 19, paragraph 1).

The second trial began on February 17, 2015, and appellant elected to 1 be punished by the trial judge in the event of conviction (RR, Vol. II, page 5;

CR 11) Appellant pleaded not guilty to the three counts (RR, Vol. Ill, page

10, line 13). Jurors returned a finding of guilt on all three counts (RR, Vol.

IV, Page 127; CR 63-68). At judge-alone sentencing on March 24, 2015

(RR, Vol. IV, page 1), District Judge Melisa Skinner sentenced appellant to

25 years confinement (RR, Vol. V, page 22; judgments at CR 63-68).

Defendant appealed through court-appointed counsel. The Court of Appeals

for the Fourth Supreme Judicial District affirmed the conviction on October

7, 2015. There was no motion for rehearing.

Grounds for Review

Ground No. 1

THE COURT OF APPEALS ERRED IN ITS RULING THAT THE TRIAL COURT DID NOT ERR IN ADVISING JURORS THEY HAD A RIGHT TO DISAGREE WITH THE LAW. (RR, Vol. II, pages 15-18):

THE COURT OF APPEALS ERRED IN ITS RULING THAT THE APPELLANT WAIVED ERROR ON STRIKING JUROR 25 (RR, Vol. IV, pages 89-90) Argument

• Direct, concise argument with supporting authorities amplifying the reasons for granting review, here failure to follow precedent. Give reasons under TRAP 66.3 departed from precedent. CA conflicts with applicable decisions of CCA.

• Appellant did not waive his proper challenge against Juror No. 25.

Prayer for Relief

Appellant prays for court-appointed counsel to assist in the

preparation of a proper brief is the court grants this petition for discretionary

review. Appellant prays for the Court to reverse and remand appellant's

case for a new trial.

Respectfully submitted,

FELIX FLORES TDCJ NO. 1990293 Byrd Unit 21FM247 Huntsville, Texas 77320 Appellant Pro Se

Certificate ofService

I hereby certify that on the below referenced date that I sent the above petition for discretionary relief to appellee: 3 Appellate Division Bexar County District Attorney's Office Paul Elizondo Tower, Seventh Floor 101 W. Nueva Street San Antonio, Texas 78205

and to the State Prosecuting Attorney:

Ms. Lina M. McMinn State Prosecuting Attorney P.O. Box 13046 Austin, Texas 78711-3046

FELIX FLORES jfourtl) Court of appeals; H>an Antonio, (Eexas;

MEMORANDUM OPINION

No. 04-15-00172-CR

The STATE of Texas, Appellee

From the 290th Judicial District Court, Bexar County, Texas Trial Court No. 2013CR10149 Honorable Melisa Skinner, Judge Presiding

Opinion by: Sandee Bryan Marion, Chief Justice

Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Jason Pulliam, Justice

Delivered and Filed: October 7, 2015

AFFIRMED

A jury found appellant guilty on three counts of aggravated robbery, and the trial court assessed punishment at twenty-five years' confinement. In two issues, appellant asserts the trial court erred by telling the jurors they could disagree with the law and the trial court prevented defense counsel from developing a challenge for cause. We affirm.

DISAGREEING WITH THE LAW

Aprospective juror who has a bias or prejudice against any phase ofthe law upon which a party is entitled to rely is properly challengeable for cause. Threadgill v. State, 146 S.W.3d 654, 04-15-00172-CR

667 (Tex. Crim. App. 2004). The test is whether the bias or prejudice would substantially impair

the prospective juror's abilityto carry out his oath and instructions in accordance with the law. Id.

Before a prospective juror can be excused for cause on this basis, however, the law must be

explained to him and he must be asked whether he can follow that law regardless of his personal

views. Id.

On appeal, appellant asserts he was denied his rightto jurors who were not biased against

the law because the trial court told the jury venire the law could be ignored. Appellant complains

about the following remarks made by the trial court:

And let me say this too, at the outset you have the absolute rightto disagree with the law. That's one of the many, many, many great things about this country. It makes our country great that you can say you know what I know that's the law here but I don't agree. You can say I know that's the concept in the Constitution and I don't agree. You have the right to that as citizens of this country and by way of the Constitution.

So you're going to be asked a bunch of questions and you have the right to disagree with the law, right. So let's start with that. And a lotoftimes people walk in and say or they think well, I can't say I'm not going to follow the law. Or I can't say I don't agree with the law, it's the law yes, but you can. By nature of your citizenship you certainly can.

[portion of trial court's comments omitted]

That's the reason, by the way also that there's 65 of you because you can disagree with the law that applies in this case.

We disagree with appellant's characterization ofthe trial court's comments. Omitted from

the complained-ofcomments above were the following comments:

So anything that I saythat you disagree with, if I askyou if you disagree let me know. There's not going to be a problem with that. Anything the attorneys say, let them know. That's why you're here. That's why you take the oath in the morning with the Judge you talked to at the very beginning in the morning. You take an oath to answer the questions truthfully.

Also, this paragraph as well as comments made by the trial court both before and after the complained-of comments provided the necessary context for the court's comments about ignoring 04-15-00172-CR

the law. After a few brief introductory remarks and before the complained-of comments, the trial

court asked how many of the venire members had previously been present for jury selection in a

criminal case. The court then stated:

When I say this is jury selection, it really isn't jury selection. It really is a process of deselection and what I mean by that is we have 12 people that we need to selectasjurors on a felony case and this is a felony court. An aggravated robbery is a felony offense so we need 12jurors. Each side gets to eliminate 10 people for whatever reason. They're called peremptory strikes. They get to make 10 strikes a side.

The court then asked, "So why in the world would we have 65 people crammed into this

very hot courtroom right now?" The trial court answered its own question by acknowledging that

"there are certain cases that arejust notthe rightcase[] ... for specific jurors." By way of example,

the trial court said if someone left their house one morning for jury duty and discovered their car

had been burglarized, finding out the case they were to siton involved burglary of a vehicle might not bethe right case for that juror on that day. The court then made the complained-of comments.

After these comments, the trial court asked the venire a series of questions about various

concepts in the law. For example, the court asked whether there was anyone who would not hold the State to its burden of beyond a reasonable doubt; whether anyone would consider the

indictment evidence of guilt despite being instructed not to; whether anyone would not afford the defendant the presumption of innocence despite being instructed to do so; and whether anyone

would hold the defendant's not testifying in his own behalf against him despite being instructed

not to.1

It is clear from the entirety of the trial court's comments that the court was not telling the

venire members they could disagree with the law ifthey were selected asone of the twelve jurors.

1We also note that, after the jury was selected, all evidence was presented, and the charge was read tothe jury, the trial court instructed the jurors that they must follow the law. 04-15-00172-CR

Instead, the clear meaning of the court's comments was to inform the potentialjurors that—as part

of the process of selecting a jury—they had the right to disagree withthe law, with what thejudge

said, or with whatthe lawyers said, and—ifthey disagreed—they should voicetheir disagreement

because they took an oath to answer questions honestly. Encouraging the venire members to

answer honestly provided both the State and defense counsel with the opportunity to further

question a particular venire member and, if necessary, challenge the potential juror for cause or exercise a peremptory strike. For these reasons, we conclude appellant's first issue lacks merit.

CHALLENGE FOR CAUSE

In his second and final issue, appellant asserts the trial court prevented defense counsel

from striking a specific juror for cause.

After the State rested its case and just as defense counsel was about to call his second

witness, one ofthe jurors asked to speak with the trial court. The trial court excused the jury panel and asked, with counsel present, what the juror needed to say. The juror responded, "Ijustrealized that I used to be a former neighbor of the defendant." The following colloquy between the trial

court and the juror occurred:

Trial court: Of the defendant's? Is that going to effect [sic] you in any way?

Juror: It should not.

Trial court: I just wanted to make sure that that wouldn't be an issue. All right, sir. Thank you very much for letting us know. As long as it's not an issue with you and it will not effect [sic] how you judge this case, then it's not an issue with us.

Juror: Okay.

Trial court: So everything is fine then? You're going to be able tojudge this case based only on evidence that you hear from the witness stand?

Juror: (Nods affirmatively)

Trial court: That has to be a yes or no.

-4- 04-15-00172-CR

Juror: Yes.

Trial court: Okay. Thank you very much. If you will go ahead and step outside, please. Just keep him out in the hallway for a few minutes because I need to know what is going on.

The trial court then asked about the location of defense counsel's next witness, and counsel

said the witness was present and her testimony would take about five minutes. The trial then

continued. On appeal, appellate counsel contends "seconds later" defense counsel objected to the

juror continuing. The record, however, does not supportthis argument.

Rather than "seconds" passing between the trial court allowing the juror to remain on the

panel and defense counsel objecting, the record actually reveals that during this time span (1)

defense counsel briefly questioned his second witness; (2) the defense rested and closed; (3) the

trial court released the jurors for lunch; (4) defense counsel moved for a directed verdict which,

after the State responded, the trial court denied; (5) the court, the State, and defense counsel

discussed whether to sequester the jury overnight; and (6) the trial court explained to the jurors

that if deliberations began immediately, there was a possibility they could be sequestered, they

could decide when they wanted to begin deliberations, and they were excused to discuss their

options. While the jury was out discussing when to begin deliberations, defense counsel stated to the court and the State:

[Defense counsel]: Apparently the jurorthat indicated that he knew someone inthe family. He had had analtercation with them, that's where he knows him from.

Trial court: Well, he's indicated he can still be fair in this case. He has indicated that he can still be fair and that it wasn't going to effect [sic] his judgment, so.

Defense counsel: We'd object to him continuing as a juror, Judge, just based on that information.

Trial court: All right. What says the State? 04-15-00172-CR

Prosecutor: Your Honor, I believe the defense had ample opportunity to bring this up during voir dire and it wasn't brought up, so.

The trial court then stated "We're proceeding," and defense counsel stated "Note our

objection, Judge."

On appeal, appellant contends this case is similar to Franklin v. State, 138 S.W.3d 351,

354 (Tex. Crim. App. 2004) (?Franklin IF), in which the Court of Criminal Appeals held the

improper limitation on defense counsel's ability to question a juror violated the defendant's

constitutional right of a trial by an impartial jury. In that case, during voir dire, defense counsel

asked the venire members if they knew any of the participants in the trial, and none of the jurors

indicated that they knew the participants. During trial, when the State called its first witness—the

victim—to the stand, one of thejurors notified the judge that she knew the victim. Thejuror told

the judge she had not recognized the victim's name during voir dire but recognized the victim when she saw her at trial. The trial court asked the juror if she could listen to the evidence in the

case and base her judgment only on what she heard from the stand, and the juror responded that she could. Defense counsel moved for a mistrial, stating that if he had known about the

relationship between the juror and the victim, he would have exercised a peremptory challenge. Defense counsel also requested to ask the juror additional questions about her relationship with the victim. When the trial court refused to allow additional questioning, defense counsel objected

that his client's due process rights were being violated. Defense counsel argued the judge was

preventing him from developing any testimony regarding potential biases. Nevertheless, the trial court overruled defense counsel's objections and denied the motion for mistrial. Id. at 352.

Unlike in Franklin, in this case, defense counsel did not ask during voir dire if any venire

member knew the defendant. See Webb v. State, 232 S.W.3d 109, 113 (Tex. Crim. App. 2007)

(noting that "it is incumbent upon counsel to specifically ask questions which will determine 04-15-00172-CR

whether they have a right to challenge the venire member"). Later, during trial, when the juror

said he knew appellant, defense counsel did not immediately object. State v. Morales, 253 S.W.3d

686,697 (Tex. Crim. App. 2008) ("Even so, the Sixth Amendment rightto an impartial jury isjust

that—a right. We have heldthat the right to trial by impartial jury, like any other right, is subject

to waiver (or even forfeiture) by the defendant in the interest of overall trial strategy. Indeed, the

Legislature has expressly made a defendant's right to challenge a prospective juror for cause on

the basis of an actual bias subjectto waiver."). When counsel later raised an objection, he did not

ask to question the juror or offer the questions he would have asked. See Franklin v. State, 12

S.W.3d 473, 477 (Tex. Crim. App. 2000) ^Franklin 7") (defense counsel specifically requested

that he be able to ask "questions concerning the nature of the relationship with [the victim], how

long it had lasted, whether or not she could set aside any of her relationship with [the victim] in sitting in judgment in this particular case, orwhether she would tend to give more credence orless credence to [the victim]'s testimony and truthfulness due tothat relationship." Trial court's refusal

to allow counsel's request to ask these questions amounted to a direct order not to ask the

questions; therefore, defendant properly preserved the issue for review). On this record, we conclude appellant did not preserve his complaint for our review on

appeal.

CONCLUSION

We overrule appellant's issues on appeal and affirm the trial court'sjudgment.

Sandee Bryan Marion, Chief Justice

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