Harrison v. State

333 S.W.3d 810, 2010 WL 5187428
CourtCourt of Appeals of Texas
DecidedJanuary 20, 2011
Docket01-09-00611-CR
StatusPublished
Cited by15 cases

This text of 333 S.W.3d 810 (Harrison 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
Harrison v. State, 333 S.W.3d 810, 2010 WL 5187428 (Tex. Ct. App. 2011).

Opinion

OPINION

LAURA CARTER HIGLEY, Justice.

Appellant, Warren Harrison, was charged by indictment with the felony offense of murder. 1 Appellant pleaded not guilty. A jury convicted appellant and assessed punishment at 25 years’ confinement. Appellant brought this appeal. In four points of error, appellant challenges the trial court’s denial of his request for additional time to conduct voir dire and asserts that he received ineffective assistance of counsel because of his attorney’s “ineffective use of time during voir dire.”

We affirm.

Background

On November 2, 2006, appellant, his girlfriend, and Nicole Williams went to Tianna Rivers’s apartment to confront her about money Williams believed Tianna had stolen. Tianna met the group outside her apartment carrying a can of mace and a kitchen knife. Upon hearing the disturbance, Tianna’s mother, Laurie Rivers, came outside and told the group to leave.

When appellant approached Tianna, she pulled out the kitchen knife. Laurie told Tianna, “Go get my pistol.” Appellant pulled out a gun and tried to shoot, but the gun’s safety device prevented it from firing. Williams attempted to pull down appellant’s arm and told him not to shoot, but he pulled his arm away. Appellant disengaged the safety and began shooting at Tianna and Laurie. He shot Tianna in the leg before pursuing Laurie and shooting her in the chest. Laurie died from the gunshot wound.

At trial, appellant began voir dire by asking if any of the panel members had conflicts that would prevent them from devoting the time necessary to jury service. Appellant educated the panel on the process of voir dire and the strike system. He asked panel members individually about prior jury service, asking each person how long ago they had served, what type of case it was, whether that jury had reached a decision, whether that jury had been called upon to assess punishment, and finally whether anything about their prior service on a jury would influence or impact the individual’s ability to be fair and impartial.

Appellant also asked which of the panel members knew of “the Joe Horn case” and asked, based upon what they had heard about that case, whether they agreed with the grand jury’s decision not to indict Horn. He asked if anyone disagreed that *812 the law, in certain circumstances, allows persons to defend themselves, and he read the law of self-defense to the panel. In his last question to the panel, appellant asked if anyone was philosophically opposed to gun ownership.

When the trial court informed appellant that his time for questioning had expired, appellant stated that he wanted to file a formal pre-typed motion requesting additional time to ask questions included in the motion. The trial court informed appellant that he had already been given 44 minutes, 14 minutes more than originally allotted. Appellant then offered the motion for additional time, which listed the questions he was unable to ask and began to recite additional questions beyond those listed in the pre-typed motion. The trial court instructed him to “write those down and then just have it offered.” Appellant replied, “As long as I can make a bill later with the rest of the questions, that’s fine.”

Following the striking procedure, the trial court asked whether either side had any objection to the seating of the jury. Both the prosecution and defense stated “none.” The jury was sworn in by the clerk of the court.

Outside the presence of the jury, the trial court asked appellant if there was anything he would like to put on the record. Appellant recited the questions he asserted he would have asked had he been given more time. The trial court reiterated that appellant had already been given 14 additional minutes and that it did not believe he had used his time effectively. The trial court stated its reasons why it felt that appellant had sufficient time for voir dire, but it never formally ruled on appellant’s counsel’s objections. Before the indictment was presented, the trial court asked a second time if there was any objection to the seating of the jury. Appellant responded, “None from the defense.”

Motion for Additional Time to Conduct Voir Dire

In his first three points of error, appellant challenges the trial court’s refusal of his request for additional time to conduct voir dire.

A. Standard of Review

We review a trial court’s ruling on the process of jury selection under an abuse of discretion standard. Sells v. State, 121 S.W.3d 748, 755 (Tex.Crim.App.2003). A trial court has broad discretion over the process of selecting a jury and may impose reasonable limits on voir dire. Id. “The fact that counsel can think of one more proper question should not transform a reasonable time limit to an unreasonable one.” Whitaker v. State, 653 S.W.2d 781, 782 (Tex.Crim.App.1983). Instead, to establish that the trial court abused its discretion, the complaining party must show that (1) he did not attempt to prolong voir dire, and (2) the questions he sought to ask were not improper voir dire questions. See McCarter v. State, 837 S.W.2d 117, 121 (Tex.Crim.App.1992) (applying two-prong test when defendant was in process of asking questions to entire panel, not individual members).

B. Waiver of Error

As an initial matter, the State argues that appellant waived any error relating to the voir dire process when appellant twice affirmatively stated that he had no objection to the seating of the jury. We agree.

The States points out that, generally, an affirmative statement of “no objection” waives any error relating to that matter. 2 *813 See, e.g., Swain v. State, 181 S.W.3d 359, 368 (Tex.Crim.App.2005) (holding that appellant waives any error when he affirmatively states no objection to introduction of exhibits despite earlier objections); Moraguez v. State, 701 S.W.2d 902, 904 (Tex.Crim.App.1986) (holding that defendant preserves objection to introduction of evidence in pre-trial motion to suppress but waives any error when he affirmatively states no objection to introduction of same evidence at trial).

Both after he filed his pre-typed motion and after he presented his offer of proof to the trial court about what questions he would have asked, the trial court asked if appellant had any objection to the seating of the jury. Both times, appellant affirmatively stated that he had no objections. We hold that appellant waived any error to the amount of time he was given to question the jury by affirmatively stating that he had no objection to the seating of the jury.

We overrule appellant’s first three points of error.

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Bluebook (online)
333 S.W.3d 810, 2010 WL 5187428, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harrison-v-state-texapp-2011.