Graham v. State

258 S.W.3d 201, 2008 Tex. App. LEXIS 1557, 2008 WL 553249
CourtCourt of Appeals of Texas
DecidedFebruary 27, 2008
Docket10-06-00357-CR
StatusPublished
Cited by2 cases

This text of 258 S.W.3d 201 (Graham v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Graham v. State, 258 S.W.3d 201, 2008 Tex. App. LEXIS 1557, 2008 WL 553249 (Tex. Ct. App. 2008).

Opinions

OPINION

BILL VANCE, Justice.

This is an appeal from a conviction for aggravated assault with a deadly weapon. Punishment was two years in prison. In his sole issue, Douglas Graham challenges the trial court’s denial of a mistrial on the grounds that a juror also served on the grand jury that returned the indictment against him. We will affirm.

Background

The facts relating to the juror are undisputed. Graham was indicted on March 29, 2006 for aggravated assault with a deadly weapon, and the trial began on August 7, 2006. At the start of voir dire, the court asked the jurors whether anyone was previously familiar with the case and no one responded. The State questioned the ve-nire first and asked the venire whether any panel members knew Graham, the three officers in the case, or Mrs. Graham. The State noted that, because the case came out of a small town, it is very likely that jurors knew people involved in the case. Several panel members acknowledged that they knew the officers testifying in the case; however, no one stated they were familiar with Graham or Mrs. Graham. Graham’s counsel then proceeded to question the panel, and during that [203]*203time, he did not inquire into whether any veniremember had any relationship to the case. At the close of voir dire, the State exercised a challenge for cause, one venire-member was excused, and the jury was selected.

Mona Ackland was one of the twelve jurors. During the State’s case in chief, Ackland informed the trial court that she may have served on the Grand Jury that indicted Graham. A hearing was held to determine whether Ackland had heard evidence on Graham’s specific case. At the hearing, Ackland testified that she had served on the Grand Jury on March 29and that she heard testimony from Mrs. Graham but not from Graham. The following testimony then occurred in response to questions by the court:

[Q]: During the question/answer session earlier this morning, do you remember me asking if anyone knew anything about the facts of this case?
[A]: Yes, sir.
[Q]: And did that jog your memory?
[A]: No, sir.
[Q]: And when did you first realize you may have served on the grand jury that heard this case?
[A]: Uhm-m, when she walked in the room, I felt I knew her. And as she began to tell her story, then it became clear to me that it was possible that that was a case during that time.
[Q]: Now, do you remember whether or not Mr. Graham appeared before the grand jury?
[A]: No. I’ve never seen Mr. Graham before.

At the close of the hearing, Graham argued that Ackland should not continue as a juror and he moved for a mistrial. The trial court denied Graham’s motion for mistrial and, by agreement of counsel for the State and Defense excused Ackland and allowed the trial to move forward with only eleven jurors.

Prior Grand Jury Service by a Juror

In his only issue, Graham complains that the trial court erred by overruling his motion for mistrial based upon the presence of a juror who had also served on the grand jury that indicted him. The State argues that because Graham’s counsel did not inquire into whether any potential jurors had sat on the grand jury that indicted Graham, any error was waived. See Tex.Code Crim. PROC. Ann. art. 35.16(a) (Vernon 2006). The pertinent parts of 35.16(a) provide:

(a) A challenge for cause is an objection made to a particular juror, alleging some fact which renders the juror incapable or unfit to serve on the jury. A challenge for cause may be made by either the state or the defense for any one of the following reasons:
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(2) That the juror has been convicted of misdemeanor theft or a felony;
(3) That the juror is under indictment or other legal accusation for misdemeanor theft or a felony;
(4) That the juror is insane;
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(7) That the juror served on the grand jury which found the indictment;
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No juror shall be impaneled when it appears that the juror is subject to the second, third or fourth grounds of challenge for cause set forth above, although both parties may consent. All other grounds for challenge may be waived by [204]*204the party or parties in whose favor such grounds of challenge exist.

Id. § 35.16(a).

We review a trial court’s denial of a motion for mistrial for an abuse of discretion. See Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex.Crim.App.2004). A mistrial is appropriate only for highly prejudicial and incurable errors. Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App.2003).

The Code of Criminal Procedure makes it a ground of challenge for cause that a panelist “served on the grand jury which found the indictment.” Tex.Code CRim. Proc. Ann. art. 35.16(a)(7). It is error for a trial court to overrule a challenge for cause to a panelist who was a member of the grand jury that returned the indictment being tried. Wolfe v. State, 147 Tex.Crim. 62, 178 S.W.2d 274, 279 (Tex.Crim.App.1944); Mitchell v. State, 116 Tex.Crim. 65, 27 S.W.2d 800, 800-01 (Tex.Crim.App.1930). But a claim that a juror served on the indicting grand jury is a ground for a challenge for cause, not an absolute disqualification. Tex.Code CRIM. Peoc. Ann. art. 35.16(a); Webb v. State, 232 S.W.3d 109, 113 (Tex.Crim.App.2007); see, e.g., Freeman v. State, 168 S.W.3d 888, 891 (Tex.App.-Eastland 2005, no pet.); Moya v. State, 691 S.W.2d 63, 65 (Tex.App.-San Antonio 1985, no pet.) (service on grand jury that returned indictment is ground of challenge that may be waived pursuant to article 35.16(a)); see also Self v. State, 39 Tex.Crim. 455, 47 S.W. 26, 28 (Tex.Crim.App.1898). The failure to question a juror about whether the juror was a member of the grand jury that returned the indictment constitutes a waiver of the right to thereafter complain that the juror was disqualified on that basis. Mitchell, 27 S.W.2d at 800.

In Self, the Court of Criminal Appeals held that questioning of a juror as to whether or not he had formed an opinion in the case did not recall to him the fact that he had sat upon the grand jury which found the bill of indictment. Self, 47 S.W. at 28.

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Bluebook (online)
258 S.W.3d 201, 2008 Tex. App. LEXIS 1557, 2008 WL 553249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/graham-v-state-texapp-2008.