IN THE TENTH COURT OF APPEALS
No. 10-19-00188-CR
FRANK THOMAS CHARGUALAF, Appellant v.
THE STATE OF TEXAS, Appellee
From the 272nd District Court Brazos County, Texas Trial Court No. 17-01483-CRF-272
MEMORANDUM OPINION
Frank Thomas Chargualaf pleaded guilty to a jury on four counts of aggravated
robbery and one count of unauthorized use of a motor vehicle. The jury found him guilty
and assessed his punishment at twenty years in the penitentiary for each aggravated
robbery charge and two years in a state jail for the unauthorized use of a motor vehicle
charge. The trial court imposed sentence in accordance with the jury’s verdict and ordered the counts run concurrently. Chargualaf raises two issues on appeal alleging
trial court error during jury selection. We will affirm.
Procedural and Factual History
On January 25, 2017, Chargualaf and a friend accompanied Charles Gipson to the
home of one of Gipson’s co-workers for a small social gathering. At some point during
the gathering Chargualaf brandished a pistol, pointed it at others in attendance, and
demanded everyone’s wallet and cell phone. Once Chargualaf collected what he could
from the victims he and his friend left in Gipson’s car. A Brazos County Grand Jury
indicted Chargualaf for four counts of aggravated robbery with a deadly weapon and
one count of unauthorized use of a motor vehicle. Before trial Chargualaf filed his
election for the jury to assess punishment and an application for community supervision
from the jury. Chargualaf complains the trial court erred during jury selection by (1)
limiting his attorney’s inquiry of a panel member as to whether she could be fair if there
was evidence of drugs, and (2) denying a defense challenge for cause against a member
of the venire. After the jury was seated and sworn, the defendant pleaded guilty to all
counts, and a punishment trial ensued.
Issue One
We will first address Chargualaf’s complaint that it was error for the trial court to
limit his attorney’s inquiry of a panel member during jury selection as to whether she
could be fair if there was evidence of drugs.
Chargualaf v. State Page 2 AUTHORITY
A trial court's ruling regarding the limitation of questioning during jury selection
is reviewed for an abuse of discretion. Hernandez v. State, 390 S.W.3d 310, 315 (Tex. Crim.
App. 2012). We review whether appellant proffered a proper question regarding a
proper area of inquiry. Id. A trial court has discretion to restrict questions during jury
selection that are confusing, misleading, vague and broad, or are improper commitment
questions. Id. “Where the trial court does not place an absolute limitation on the
substance of an appellant's voir dire question, but merely limits a question due to its form,
the appellant must attempt to rephrase the question or risk waiver of the alleged voir dire
restriction.” Id.
ANALYSIS
The question at issue was propounded to panel member 13 as follows:
[DEFENSE COUNSEL]: But if drugs are involved in this case — let's say somebody goes out and commits a crime because they're on drugs.
[PROSECUTOR]: Judge — I'm sorry, Donny — I have to object to that as an improper question under Standefer.
After a discussion on the record regarding the state’s objection the proceedings continued
out of the presence of the venire panel as follows:
THE COURT: Well, I'm going to — or where were we in this?
[PROSECUTOR]: I think we're done. Well, we were at the point they were going to ask her the question that I objected to under Standefer.
THE COURT: You got any other questions? Chargualaf v. State Page 3 [DEFENSE COUNSEL]: No, sir. We object. I mean we challenge for cause.
[PROSECUTOR]: And I object to that challenge.
THE COURT: The challenge is refused. Denied.
The record shows that defense counsel was asked by the trial court if he had any other
questions to which he answered “[n]o, sir.” Then defense counsel lodged a challenge for
cause against panel member 13. The trial court never ruled on the State's objection to
defense counsel’s question to panel member 13. The trial court never prohibited defense
counsel from asking additional questions and defense counsel was not denied the right
to ask other questions. Chargualaf has failed to show that the trial court erroneously
denied him the opportunity to ask a proper question. See Sells v. State, 121 S.W.3d 748,
756 (Tex. Crim. App. 2003) (“To preserve error, appellant must show . . . prevent[ion]
from asking particular questions that were proper.”) (emphasis original); Barajas v. State,
93 S.W.3d 36, 38 (Tex. Crim. App. 2002). Accordingly, we overrule Chargualaf’s first
issue.
Issue Two
In issue two Chargualaf asserts that the trial court erred in denying a challenge for
cause against panel member 13 of the venire.
AUTHORITY
“When reviewing a trial court's decision to deny a challenge for cause, we look to
the entire record to determine whether sufficient evidence exists to support the court's
Chargualaf v. State Page 4 ruling.” Hudson v. State, 620 S.W.3d 726, 731 (Tex. Crim. App. 2021) (citing Davis v. State,
329 S.W.3d 798, 807 (Tex. Crim. App. 2010)). We reverse only for a clear abuse of
discretion. Id. Because the trial judge is in the best position to evaluate a potential juror's
demeanor and responses, we review a trial court's ruling on a challenge for cause with
considerable deference. Id. (citing Gardner v. State, 306 S.W.3d 274, 295–96 (Tex. Crim.
App. 2009)).
A challenge for cause may be lodged against a venireperson if she “has a bias or
prejudice against the defendant or against the law upon which either the State or the
defense is entitled to rely.” Gardner, 306 S.W.3d at 295; see TEX. CODE CRIM. PROC. ANN.
art. 35.16(a)(9), (c)(2). The bias or prejudice made the basis of a challenge for cause must
“substantially impair the prospective juror's ability to carry out his oath and instructions
in accordance with the law.” Gardner, 306 S.W.3d at 295. Before a jury panel member
may be excused because of bias or prejudice, the law must be explained to the panel
member, and the panel member must be asked whether she can follow that law
regardless of personal views. Id. The burden is upon the proponent of a challenge for
cause to establish that the challenge is proper by showing that the panel member
“understood the requirements of the law and could not overcome her prejudice well
enough to follow the law.” Id.
Chargualaf v. State Page 5 ANALYSIS
Panel member 13 indicated she had a family member with a substance abuse
addiction, that the family member’s drug abuse would affect her, and that she was biased
with regard to punishment as a consequence of such criminal behavior. Defense counsel
challenged panel member 13 but did not specify the grounds of his challenge. No
additional questions were asked of panel member 13, despite defense counsel being
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IN THE TENTH COURT OF APPEALS
No. 10-19-00188-CR
FRANK THOMAS CHARGUALAF, Appellant v.
THE STATE OF TEXAS, Appellee
From the 272nd District Court Brazos County, Texas Trial Court No. 17-01483-CRF-272
MEMORANDUM OPINION
Frank Thomas Chargualaf pleaded guilty to a jury on four counts of aggravated
robbery and one count of unauthorized use of a motor vehicle. The jury found him guilty
and assessed his punishment at twenty years in the penitentiary for each aggravated
robbery charge and two years in a state jail for the unauthorized use of a motor vehicle
charge. The trial court imposed sentence in accordance with the jury’s verdict and ordered the counts run concurrently. Chargualaf raises two issues on appeal alleging
trial court error during jury selection. We will affirm.
Procedural and Factual History
On January 25, 2017, Chargualaf and a friend accompanied Charles Gipson to the
home of one of Gipson’s co-workers for a small social gathering. At some point during
the gathering Chargualaf brandished a pistol, pointed it at others in attendance, and
demanded everyone’s wallet and cell phone. Once Chargualaf collected what he could
from the victims he and his friend left in Gipson’s car. A Brazos County Grand Jury
indicted Chargualaf for four counts of aggravated robbery with a deadly weapon and
one count of unauthorized use of a motor vehicle. Before trial Chargualaf filed his
election for the jury to assess punishment and an application for community supervision
from the jury. Chargualaf complains the trial court erred during jury selection by (1)
limiting his attorney’s inquiry of a panel member as to whether she could be fair if there
was evidence of drugs, and (2) denying a defense challenge for cause against a member
of the venire. After the jury was seated and sworn, the defendant pleaded guilty to all
counts, and a punishment trial ensued.
Issue One
We will first address Chargualaf’s complaint that it was error for the trial court to
limit his attorney’s inquiry of a panel member during jury selection as to whether she
could be fair if there was evidence of drugs.
Chargualaf v. State Page 2 AUTHORITY
A trial court's ruling regarding the limitation of questioning during jury selection
is reviewed for an abuse of discretion. Hernandez v. State, 390 S.W.3d 310, 315 (Tex. Crim.
App. 2012). We review whether appellant proffered a proper question regarding a
proper area of inquiry. Id. A trial court has discretion to restrict questions during jury
selection that are confusing, misleading, vague and broad, or are improper commitment
questions. Id. “Where the trial court does not place an absolute limitation on the
substance of an appellant's voir dire question, but merely limits a question due to its form,
the appellant must attempt to rephrase the question or risk waiver of the alleged voir dire
restriction.” Id.
ANALYSIS
The question at issue was propounded to panel member 13 as follows:
[DEFENSE COUNSEL]: But if drugs are involved in this case — let's say somebody goes out and commits a crime because they're on drugs.
[PROSECUTOR]: Judge — I'm sorry, Donny — I have to object to that as an improper question under Standefer.
After a discussion on the record regarding the state’s objection the proceedings continued
out of the presence of the venire panel as follows:
THE COURT: Well, I'm going to — or where were we in this?
[PROSECUTOR]: I think we're done. Well, we were at the point they were going to ask her the question that I objected to under Standefer.
THE COURT: You got any other questions? Chargualaf v. State Page 3 [DEFENSE COUNSEL]: No, sir. We object. I mean we challenge for cause.
[PROSECUTOR]: And I object to that challenge.
THE COURT: The challenge is refused. Denied.
The record shows that defense counsel was asked by the trial court if he had any other
questions to which he answered “[n]o, sir.” Then defense counsel lodged a challenge for
cause against panel member 13. The trial court never ruled on the State's objection to
defense counsel’s question to panel member 13. The trial court never prohibited defense
counsel from asking additional questions and defense counsel was not denied the right
to ask other questions. Chargualaf has failed to show that the trial court erroneously
denied him the opportunity to ask a proper question. See Sells v. State, 121 S.W.3d 748,
756 (Tex. Crim. App. 2003) (“To preserve error, appellant must show . . . prevent[ion]
from asking particular questions that were proper.”) (emphasis original); Barajas v. State,
93 S.W.3d 36, 38 (Tex. Crim. App. 2002). Accordingly, we overrule Chargualaf’s first
issue.
Issue Two
In issue two Chargualaf asserts that the trial court erred in denying a challenge for
cause against panel member 13 of the venire.
AUTHORITY
“When reviewing a trial court's decision to deny a challenge for cause, we look to
the entire record to determine whether sufficient evidence exists to support the court's
Chargualaf v. State Page 4 ruling.” Hudson v. State, 620 S.W.3d 726, 731 (Tex. Crim. App. 2021) (citing Davis v. State,
329 S.W.3d 798, 807 (Tex. Crim. App. 2010)). We reverse only for a clear abuse of
discretion. Id. Because the trial judge is in the best position to evaluate a potential juror's
demeanor and responses, we review a trial court's ruling on a challenge for cause with
considerable deference. Id. (citing Gardner v. State, 306 S.W.3d 274, 295–96 (Tex. Crim.
App. 2009)).
A challenge for cause may be lodged against a venireperson if she “has a bias or
prejudice against the defendant or against the law upon which either the State or the
defense is entitled to rely.” Gardner, 306 S.W.3d at 295; see TEX. CODE CRIM. PROC. ANN.
art. 35.16(a)(9), (c)(2). The bias or prejudice made the basis of a challenge for cause must
“substantially impair the prospective juror's ability to carry out his oath and instructions
in accordance with the law.” Gardner, 306 S.W.3d at 295. Before a jury panel member
may be excused because of bias or prejudice, the law must be explained to the panel
member, and the panel member must be asked whether she can follow that law
regardless of personal views. Id. The burden is upon the proponent of a challenge for
cause to establish that the challenge is proper by showing that the panel member
“understood the requirements of the law and could not overcome her prejudice well
enough to follow the law.” Id.
Chargualaf v. State Page 5 ANALYSIS
Panel member 13 indicated she had a family member with a substance abuse
addiction, that the family member’s drug abuse would affect her, and that she was biased
with regard to punishment as a consequence of such criminal behavior. Defense counsel
challenged panel member 13 but did not specify the grounds of his challenge. No
additional questions were asked of panel member 13, despite defense counsel being
afforded the opportunity to ask more questions by the trial court.
Panel member 13 was not asked if her bias would substantially impair her ability
to carry out her oath and instructions in accordance with the law. See Gardner, 306 S.W.3d
at 295. She was never asked whether she can follow that law regardless of her personal
views. See id. Defense counsel failed to show panel member 13 understood the
requirements of the law and could not overcome her prejudice well enough to follow the
law. See id. Without appropriate responses to the above questions Chargualaf cannot
show that panel member 13 understood the requirements of the law, could not follow the
law because of her personal views, or had a bias that would affect her ability to decide
the case based only upon the facts and evidence.
Further, defense counsel did not ask questions that sought to challenge panel
member 13 on her ability to consider the full range of punishment. During jury selection
the prosecutor asked, “Is there anybody here who cannot consider that full range of
punishment from down to probation in a proper case up to life in prison?” While the
Chargualaf v. State Page 6 record reflects that in response to the question some panel members raised their hands
voluntarily the prosecutor followed up the question with a request that panel members
raise their hands. Panel member 13 was not identified as raising her hand and was among
those able to consider the full range of punishment.
We conclude the trial court did not err in denying the challenge for cause as to
panel member 13. Appellant’s second issue is overruled.
Conclusion
Having overruled appellant’s issues, we affirm the judgment of the trial court.
MATT JOHNSON Justice
Before Chief Justice Gray, Justice Johnson, and Justice Rose1 Affirmed Opinion delivered and filed August 11, 2021 Do not publish [CR25]
1 The Honorable Jeff Rose, Former Chief Justice of the Third Court of Appeals, sitting by assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§ 74.003, 75.002, 75.003.
Chargualaf v. State Page 7