COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-13-00036-CR
JEFFERY BARREN MCKINLEY APPELLANT A/K/A JEFFERY B. MCKINLEY
V.
THE STATE OF TEXAS STATE
----------
FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 1271870D
MEMORANDUM OPINION1
I. INTRODUCTION
A jury convicted Appellant Jeffery Barren McKinley a/k/a Jeffery B.
McKinley of sexual assault of a child under age seventeen and assessed his
punishment at eight years’ confinement. See Tex. Penal Code Ann.
§ 22.011(a)(2)(C) (West 2011). The trial court sentenced him accordingly. In
1 See Tex. R. App. P. 47.4. two points, McKinley complains of the sufficiency of the evidence to support his
conviction and the trial court’s denial of his challenge for cause on prospective
juror number 28. We will affirm.
II. FACTUAL BACKGROUND
A. The Victim’s Testimony
In August 2011, Allison Downs2 was living with her mother in Bedford at
the Gentry’s Walk Apartments. She had recently returned to Bedford after
spending seven months at a juvenile facility in San Antonio. She was on
probation in the fall of 2011 and attended an alternative school.
Allison first saw McKinley when her mentor took her to Stroud’s Fitness in
September 2011 to check out the activity schedule. Allison noticed McKinley,
and he noticed her; they did not, however, have a conversation that day.
The second time that Allison saw McKinley was when she was at Stroud’s
with her friend Nia. Allison saw McKinley leaning on a counter, and they stared
at each other. Allison noticed that McKinley had a badge with “Jeff M.” on it and
concluded that he worked at Stroud’s. McKinley came over and struck up a
conversation with Allison. McKinley ultimately asked Allison for her phone
number and gave her his phone number. The two began texting frequently, but it
was not flirtatious.
2 This pseudonym is used throughout the parties’ briefs and will be used in this opinion to identify the victim. See 2nd Tex. App. (Fort Worth) Loc. R. 7 (requiring parties to use aliases in documents filed with the court if the court determines that a person’s identity should be protected).
2 The next time that Allison saw McKinley was five to seven days later when
she was leaving her apartment to go to her cousin’s apartment to babysit.
McKinley was in a gray Chrysler car driving towards the front entryway of the
apartment complex.3 McKinley stopped and honked the horn. Allison did not
know that it was McKinley until he rolled down the window and she was able to
see him. They realized during this meeting that they lived at the same apartment
complex. While Allison was babysitting, she texted McKinley. He asked when
he could see her, and the two met later that evening by the pool at their
apartment complex.4 McKinley complimented Allison, saying that she was pretty
and that she had a nice shape and size. They talked about their birthdays;
Allison told McKinley that her birthday had just passed and that she had turned
fifteen. McKinley told her that his birthday was in November and that he was
twenty-six, but he also gave two other ages, including that he was nineteen.
When Allison pointed out that he had given her different ages, he said, “Plausible
deniability.” Allison thought that McKinley was older than the ages he gave
because his conversation was mature; he talked about work and family, not
3 In the written statement that she gave to the police, Allison said that this was when she met McKinley for the first time. Allison explained during cross- examination that she had started her statement at that point in her story but that she had testified truthfully about her previous meetings with McKinley. 4 During her direct examination, Allison testified that she met McKinley at the pool after returning from babysitting at her cousin’s. On cross-examination, Allison testified that she met McKinley at the pool a few days after meeting him in the parking lot.
3 school or hanging out.5 McKinley told Allison that he was a personal trainer and
that he helped people get gym memberships. McKinley also told Allison that he
had twin boys who lived in Kentucky with their mom. Their talk at the pool lasted
for ten minutes, and when they were leaving, McKinley kissed Allison on the lips.
After the kiss, he grabbed her waist and told her that she had pretty pink lips and
a pretty smile. McKinley said that he would text Allison later, and then she went
home.
McKinley began texting Allison every morning at 5:00 or 6:00 a.m. before
she had awakened for school. Allison testified that whenever she called
McKinley’s phone number, which she had stored in her phone under
“Consultants S,” McKinley always answered; there was no indication that the
number she used to contact him, which ended in 3760, was not his phone
number. Allison testified that she used the tag line “Baby” or “Peaches Baby” in
her texts to McKinley and that he used the tag line “S.I.G.,” but Allison never
asked what that stood for. Allison sometimes used the nickname “Daddy” for
McKinley; he referred to Allison using the nicknames “Boo,” “Princess,” and
“Gorgeous.”
One morning before school in mid-September, McKinley texted Allison,
“Come over. I’ll fix you breakfast. We can chill.” Allison told her mother that she
was going to school, but she went to McKinley’s apartment for the first time.
5 Allison testified that McKinley did not tell her that he was thirty-six until later.
4 They talked and watched a movie. While they were watching a movie, McKinley
leaned over and started kissing her and touching her on various parts of her
body. When McKinley took off his clothes, Allison saw that he had an “A”
tattooed on his chest.6 Allison testified that McKinley’s penis contacted her
sexual organ. They had sex two times that morning. Allison stayed at
McKinley’s apartment until the school day was over.
From that day in mid-September through the end of October, Allison went
over to McKinley’s apartment “almost every single day” and had sex with
McKinley approximately fifty times. Sometimes McKinley picked up Allison at a
meeting point after school released at 2:45 p.m., they had sex, and she left his
apartment about 3:30 or 4:00 p.m. But the normal routine was that she arrived at
McKinley’s apartment around 7:15 a.m. and stayed until 9:00 a.m., and then
McKinley drove her to school in the gray Chrysler 300.7
One day when Allison skipped school to go to McKinley’s apartment, her
probation officer went to the school to see her. When Allison’s probation officer
learned that Allison was not at school, the probation officer called Allison’s
6 McKinley’s fiancée also testified that McKinley had a tattoo of an “A” on his chest. 7 On one occasion, Allison noticed lip gloss in the car and asked McKinley about it. He told her that the car belonged to a girl named Amanda, whom Allison did not know, and that the only reason he had anything to do with Amanda was because they were sharing the car. Allison had also seen women’s hair supplies and feminine hygiene products in the cabinet under the sink in McKinley’s apartment, but she never told him that she had seen them.
5 mother. Allison’s mother texted Allison, asking where she was; Allison did not
text her back. Allison’s mother ultimately called McKinley, who was lying on the
bed after having had sex with Allison. Allison told McKinley not to answer, but he
answered the call and turned on the speaker. McKinley told Allison’s mother that
she may have the wrong number and that he was not who she thought he was.
Allison’s mother screamed through the phone, “Well, you sound like a grown man
and my daughter is 15 years old and you have no business associating with her
so I don’t know why your number is in her phone.” McKinley told her that he was
hanging up, and the conversation ended. Allison testified that she was pretty
freaked out but that McKinley was not. She said, “He just looked at me and he
kind of smirked[,] and he was like, ‘[W]ow[.]’” He repeated that she was fifteen8
and said that her age turned him on and that he wanted sex. They had sex, and
she left McKinley’s apartment around 10:00 or 11:00 p.m.
When Allison arrived at her house, her mother, her sisters, most of her
family, and her counselor were there. They confronted Allison about where she
had been and what she had been doing. Allison testified that she knew what she
had been doing was wrong because McKinley was older than her and they
8 Allison confirmed that she had told him that she was fifteen during their meeting at the pool.
6 “weren’t supposed to be doing what [they] were doing with each other.” She did
not, however, end her relationship with McKinley; she continued to text him.9
Toward the end of their relationship, McKinley started talking to Allison
about modeling and told her that prostitution could pay for modeling school.
Allison testified that McKinley set up three dates for her to go on, but they never
actually went through.10
On October 28, 2011, Allison was arrested at school and was taken to
juvenile detention because she had violated her juvenile probation by truancy.
While Allison was in detention, some police officers came to see her to talk to her
about what went on with McKinley. Allison initially refused to talk to them
because she did not want to get McKinley in trouble. The officers told her that
her mother had retrieved Allison’s phone, had gone through the pictures and
9 One of the text messages retrieved from Allison’s phone and that was sent from McKinley’s phone number was dated October 27, 2011, at 14:15:55 and stated, “I wanna t[----] u. S.I.G.” At 14:18, a text from McKinley’s phone number was sent to Allison’s phone number and stated, “I m ready too babe. S.I.G.” At 14:19:37, Allison texted McKinley, “Okay. Well, I’ll be waiting daddy,” with the signature line “Mrs. Peaches Baby.” On October 28, 2011, at 9:21 a.m., a text was sent from McKinley’s phone number to Allison’s phone number and stated, “U left your nighty here red n blk lol. Middle of the floor lol. I’ll get it to u when we hook up tonight to deposit that money ok princess. Ha smells gud S.I.G.” 10 A text message that was retrieved from Allison’s phone and was sent from McKinley’s phone number states, “Someone wants to pay for sum Mrs. Peaches Baby” and gives an address. Allison responded by asking if she could use McKinley’s apartment. McKinley asked for a time and told her to throw a small blanket over the place where she was going to have sex with the man who was willing to pay.
7 texts messages, and was concerned that Allison had been “messing with an
older man.” At that point, Allison decided to speak to the officers. Allison also
gave a written statement11 and initially agreed to go to the hospital, but once she
arrived, she declined a sexual assault exam.
B. McKinley’s Fiancée’s Testimony
In June 2011, McKinley was engaged to Amanda, and they lived together
at the Gentry’s Walk Apartments.12 During that summer, Amanda began having
doubts about whether she would marry McKinley. By September 2011, she was
fighting a lot with McKinley. To cool off, she would leave and go to her mother’s
house. The longest that she stayed at her mother’s house was two or three
days. But even when she did not spend the night at McKinley’s apartment during
September and October 2011, Amanda would drive to his apartment a little
before 8:00 a.m. every day to help him look for a job and to make sure that he
had food because he was not working.13 She would get ready for work at the
11 In the written statement she gave to the police, Allison described in detail the inside of McKinley’s efficiency apartment. Officer Nunez, who was present when Detective Ripley executed the search warrant at McKinley’s apartment, testified that from Allison’s description of the apartment and the furnishings, it was pretty obvious that she was familiar with the apartment. 12 Amanda testified that McKinley’s apartment was her residence from mid- September to the end of October 2011, but she did not co-sign on the lease because she did not want her credit affected if the bills were not paid. 13 McKinley never told Amanda that he had a job at Stroud’s, and she did not believe that he ever had a job there because she never saw a name tag or a uniform showing that he worked at Stroud’s. Amanda testified that McKinley did
8 apartment, and then he would drive her to her job. They usually would leave the
apartment around 8 a.m., and she would arrive at work at 8:15 a.m., except for
Wednesdays and Thursdays when they would leave the apartment at 9:30 a.m.
because she did not have to be at work until 10 a.m. Amanda owned her own
car, a silver Chrysler 300, which she allowed McKinley to use during the day
while she was at work. McKinley met Amanda for lunch every day and then
picked her up from work at the end of her work day.
Amanda testified that McKinley had a trip planned at the end of October to
go to Kentucky to see his daughter for her birthday.14 Amanda decided to
retrieve her belongings while McKinley was out of town. Amanda went to
McKinley’s apartment on October 31 and saw that “things were kind of thrown
around the apartment,” and she found documentation showing that a warrant had
been served. Amanda got in touch with McKinley while she was still in the
apartment and told him about the warrant; he said that he had no idea why the
police would have been inside his apartment. Amanda also asked McKinley
about a solid red item of lingerie, which she found in the apartment and did not
belong to her; he said that one of the guys had brought it by to show off to the
rest of the guys and had left it. When she was leaving, Amanda was pulled over
by the police in the parking lot. One of the officers, Sergeant Stillman, told
not have consistent employment, but occasionally he helped a friend who owned a mattress moving company. 14 Amanda testified that McKinley has twin sons and one daughter.
9 Amanda to contact McKinley immediately and to tell him to call Sergeant Stillman
or Detective Ripley. Amanda contacted McKinley and gave him the officers’
phone numbers.
C. McKinley’s Contact with Police and Arrest
Detective Ripley received a voicemail message on his business work
phone from McKinley on November 1, 2011. Detective Ripley saved the
message to his pocket recorder, and the recording was admitted into evidence.15
McKinley stated that he was in Kentucky and that he would return on
Wednesday. McKinley said that he had a new phone, that he had been receiving
some crazy text messages, and that he hoped the case had nothing to do with
that. McKinley asked Detective Ripley to call him back at his number ending in
3760, but Detective Ripley was not able to get in touch with McKinley. Detective
Ripley was informed on February 21, 2012, that McKinley had been arrested in
Toledo, Ohio, on the warrant from Bedford.
III. SUFFICIENCY OF THE EVIDENCE
In his first point, McKinley argues that insufficient evidence exists to
support his conviction for the offense of sexual assault of a child under
seventeen years of age because Allison was not credible, Allison’s testimony
was inconsistent regarding when McKinley and Allison were alone for the first
time, there was a discrepancy between the timetable Allison gave of her morning
15 Amanda recognized McKinley’s voice on the recording of the message.
10 visits to McKinley’s apartment and the timetable his fiancée gave regarding when
she left his apartment each morning, and there was no evidence that McKinley
was the actual sender and recipient of the texts and calls to and from Allison.
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Winfrey v. State, 393 S.W.3d 763, 768
(Tex. Crim. App. 2013). This standard gives full play to the responsibility of the
trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.
at 319, 99 S. Ct. at 2789; Blackman v. State, 350 S.W.3d 588, 595 (Tex. Crim.
App. 2011). The trier of fact is the sole judge of the weight and credibility of the
evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Winfrey, 393
S.W.3d at 768. Thus, when performing an evidentiary sufficiency review, we
may not re-evaluate the weight and credibility of the evidence and substitute our
judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.
Crim. App. 2010). Instead, we determine whether the necessary inferences are
reasonable based upon the cumulative force of the evidence when viewed in the
light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.
Crim. App. 2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.
2013). We must presume that the factfinder resolved any conflicting inferences
11 in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99
S. Ct. at 2793; Temple, 390 S.W.3d at 360.
A person commits the offense of sexual assault of a child younger than
seventeen years of age if the person intentionally or knowingly causes the sexual
organ of a child to contact or penetrate the sexual organ of another person,
including the actor. Tex. Penal Code Ann. § 22.011(a)(2)(C). “Child” means a
person younger than seventeen years of age. Id. § 22.011(c)(1).
Allison testified that McKinley’s penis contacted her sexual organ. Allison
also testified that she and McKinley had sex almost every day from mid-
September to the end of October and that she was fifteen years old during that
time period. Allison’s testimony is thus sufficient to establish the elements of the
offense of sexual assault for which the jury found McKinley guilty. See Garcia v.
State, 563 S.W.2d 925, 928 (Tex. Crim. App. [Panel Op.] 1978) (holding
testimony of complainant regarding sexual offense was sufficient, standing
alone); see also Tex. Code Crim. Proc. Ann. art. 38.07 (West Supp. 2014)
(providing that convictions for sexual offenses are supportable on the
uncorroborated testimony of a child victim under seventeen years of age).
Evidence also showed that McKinley was frequently home during the day due to
sporadic employment; that Allison was tardy or had unexcused absences from
September 12 to October 28, 2011; and that numerous text messages were sent
from the phone number attributed to McKinley to Allison’s phone number and to
Amanda’s phone number within short periods of time, during which McKinley
12 could have coordinated his meetings with Allison so that they would not interfere
with Amanda’s visits to the apartment.
Although McKinley attacks Allison’s credibility based on her prior juvenile
history, the inconsistencies in her testimony regarding the day that she met
McKinley at the pool, and the discrepancies between her testimony regarding the
time of her daily arrivals at his apartment and Amanda’s testimony that she was
present in McKinley’s efficiency apartment every morning at the same time, the
jury was the sole judge of the weight and credibility of the evidence, and we
presume the jury resolved any conflicts in favor of the verdict. See Jackson, 443
U.S. at 326, 99 S. Ct. at 2793; Temple, 390 S.W.3d at 360; see also Tex. Code
Crim. Proc. Ann. art. 38.04; Winfrey, 393 S.W.3d at 768. And though Detective
Ripley and the investigators who examined Allison’s phone testified that there
was no way to prove that McKinley was the person who had sent the text
messages to Allison, the jury was free to draw reasonable inferences from basic
facts to ultimate facts and conclude that McKinley was the person texting Allison.
See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Blackman, 350 S.W.3d at 595.
Viewing the evidence in the light most favorable to the jury’s verdict, we
hold that a rational trier of fact could have found beyond a reasonable doubt that
McKinley committed sexual assault of Allison by intentionally or knowingly
causing her sexual organ to contact or penetrate his sexual organ.
Consequently, we hold that the evidence is sufficient to support McKinley’s
conviction, and we overrule McKinley’s first point. See Jackson, 443 U.S. at 326,
13 99 S. Ct. at 2793; Campbell v. State, No. 11-08-00202-CR, 2010 WL 2004563,
at *6–7 (Tex. App.—Eastland May 20, 2010, pet. ref’d) (mem. op., not designated
for publication) (holding evidence sufficient to support appellant’s conviction for
sexual assault of a child younger than seventeen even though there were
conflicts in victim’s testimony and appellant and his wife claimed that appellant
had erectile dysfunction; victim testified consistently regarding where sexual
assault occurred and provided details of appellant’s bedroom that were
consistent with what investigating deputy found). We overrule McKinley’s first
point.
IV. CHALLENGE FOR CAUSE
In his second point, McKinley argues that the trial court abused its
discretion by denying his challenge for cause on prospective juror number 28 and
that this resulted in harm to McKinley.
We review a trial court’s ruling on a challenge for cause with considerable
deference because the trial court is in the best position to evaluate a prospective
juror’s demeanor and responses. Gardner v. State, 306 S.W.3d 274, 295–96
(Tex. Crim. App. 2009), cert. denied, 131 S. Ct. 103 (2010); Saldano v. State,
232 S.W.3d 77, 91 (Tex. Crim. App. 2007), cert. denied, 552 U.S. 1232 (2008).
We will reverse a trial court’s ruling on a challenge for cause only for a clear
abuse of discretion. Gardner, 306 S.W.3d at 296. When a prospective juror’s
answers are ambiguous, vacillating, unclear, or contradictory, we give particular
deference to the trial court’s decision. Id.
14 A prospective juror is challengeable for cause if he or she “has a bias or
prejudice in favor of or against the defendant.” Tex. Code Crim. Proc. Ann. art.
35.16(a)(9) (West 2006). The test is whether the bias or prejudice would
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;
Swearingen v. State, 101 S.W.3d 89, 99 (Tex. Crim. App. 2003). Before a
prospective juror may be excused for cause, the law must be explained to him,
and he must be asked whether he can follow that law, regardless of his personal
views. Gardner, 306 S.W.3d at 295. The proponent of a challenge for cause has
the burden of establishing that the challenge is proper. Id. The proponent does
not meet this burden until he has shown that the prospective juror understood the
requirements of the law and could not overcome his bias or prejudice well
enough to follow the law. Id. When the record reflects that a prospective juror
vacillated or equivocated, we must defer to the trial judge, who had the better
opportunity to see and hear the prospective juror. Id.; Swearingen, 101 S.W.3d
at 99.
Harm from the erroneous denial of a defense challenge for cause occurs
(1) when a defendant uses a peremptory strike to remove a prospective juror
whom the trial court should have excused for cause at the defendant’s request,
(2) the defendant uses all of his statutorily allotted peremptory strikes, and (3) the
defendant unsuccessfully requests an additional peremptory strike that he claims
he would use to remove another prospective juror whom the defendant identifies
15 as “objectionable” and who actually sits on the jury. Busby v. State, 253 S.W.3d
661, 670 (Tex. Crim. App.), cert. denied, 555 U.S. 1050 (2008). In these
circumstances, the trial court’s erroneous denial of a defense challenge for cause
harms the defendant by depriving him of a statutory peremptory strike that he
otherwise would have had to remove the “objectionable” juror. Id.
Here, the following exchange took place between the trial court and
prospective juror 28 after the trial court introduced the attorneys for each side
and McKinley:
THE COURT: . . . Is there anyone who thinks you know or recognize any of these individuals I’ve introduced to you here today?
If so, stand up and point at who it is that you knew before you walk[ed] through the back door this morning and saw them sitting in the courtroom, if anyone. All right. I see two jurors standing. 28 is standing and 26. Twenty-eight, you kind of got to your feet slightly faster. Who do you think you know or recognize?
PROSPECTIVE JUROR: I know Sheila [Wynn, one of the prosecutors in the case].
THE COURT: Okay. And is that personally or professionally?
PROSPECTIVE JUROR: Personally.
THE COURT: How long have you known Sheila?
PROSPECTIVE JUROR: I guess maybe five years, four to five years.
THE COURT: And what context do you all know each other?
PROSPECTIVE JUROR: I coached her daughter in baseball.
THE COURT: Which year did you coach her daughter?
16 PROSPECTIVE JUROR: Let’s see here, 2003 through five maybe.
....
THE COURT: . . . Is there anything about coaching Sheila’s daughter or about Sheila[’s] being a player[’s] mom favorable or unfavorable, because I’ve helped coach teams, and I loved or was afraid of the parents depending on how into it they were. I can see mixed emotions. Is there anything about your relationship to Sheila through sports involving kids that would cause you any problem in judging the State’s case? Is there anything you would hold for or against Sheila or the State of Texas based upon your past life experience?
PROSPECTIVE JUROR: Candidly, I really love the family, and they have a sweet daughter, and she’s a good person. I might have a bit of a bias I must say.
THE COURT: Let me just say that. You understand loving the family means the wife is an ADA and the husband is a criminal defense attorney which makes for interesting dinner conversation I’m sure. But they’re both good lawyers. They’re both good people. They’re both good parents. Their daughters I have met, and they are sweet children, but the rules are this.
If you’re a juror, you’re supposed to judge the evidence and not the lawyers. You’re supposed to objectively listen to everyone, give everyone a fair shot, and if the evidence says guilt is proven beyond a reasonable doubt, whether you loved or hated Sheila’s family, whether you enjoyed or didn’t enjoy coaching her kids, you’re supposed to vote guilty or not guilty based on the facts. And the bias for Sheila as a person is okay. The bias for the State of Texas because Sheila works for them is not okay. Do you understand the difference?
PROSPECTIVE JUROR: Yes, sir.
THE COURT: So you think you have a bias for or against the State of Texas?
PROSPECTIVE JUROR: No, sir.
17 THE COURT: You just are fond of Sheila and enjoyed your association?
THE COURT: If you listened to evidence and thought or had a reasonable doubt that the State proved its case, could you look Sheila in the eye and say “not guilty, you didn’t prove your case,” and not have guilt trips about it?
PROSPECTIVE JUROR: I think so.
THE COURT: Well, I want you to listen to everything that’s being discussed, and if you think your past associations with Sheila means that you would hold that against a Defendant or for the State after you hear what the rules are when [the] lawyers talk to you, you need to let me know, but I want [you] to be thinking about what your duty is. If you can rise above the personal relationship, fine. And if it’s too close and not fair, that’s fine. But once you get a little more information about how the process works, just give me an honest answer before the end of the day, and I thank you for your candor.
Later in the record, the following exchange took place between defense
counsel and prospective juror 28:
[DEFENSE COUNSEL]: I just wanted to revisit something really kick [sic] when you talked earlier to [the court about] Sheila. You said that you are acquainted with Sheila and her family because you coached one of her daughters.
PROSPECTIVE JUROR: Yeah.
[DEFENSE COUNSEL]: And earlier you talked to the Judge about whether you would be able to sit on this jury and look at the facts and evidence and not give Sheila’s side a little bump because you know her personally, know her family. I just wanted to talk to you a little about that. My understanding is, did you tell the Judge that you could set aside and decide on these facts?
PROSPECTIVE JUROR: Yes.
18 [DEFENSE COUNSEL]: Is that going to be easy or difficult for you to do that?
PROSPECTIVE JUROR: It would be hard truthfully.
[DEFENSE COUNSEL]: Why is that?
PROSPECTIVE JUROR: You know, you have a bond with friends, no question about it, and how should I say this. You know like she and her daughter and my daughter, we as a group of the team tried to sort of win a game, and so I’m not saying I would pay back the favor, but there is a bond that happens in any sort of challenge in life that you identify with people, and so I would be untruthful to myself if I would say it would be easy to go the other way. But I’m Christian, and I’m a proud Texan, and I would have to decide based on the facts.
[DEFENSE COUNSEL]: Okay. So you would be able to -- excuse me. So you don’t feel that same team spirit here in the courtroom?
PROSPECTIVE JUROR: Not necessarily, but there’s no doubt I have a special bond.
[DEFENSE COUNSEL]: Okay. And tell me about how -- what process would you go through -- if you’re picked on the jury, tell me what kind of process would you go through to put that out of your mind when you’re trying to make the decision?
PROSPECTIVE JUROR: Just sticking to the facts. If it sounds like a he-said-she-said kind of a scenario, and maybe some other facts, I guess, and it will be interesting because I think what will reveal itself maybe in trial is children and the accused under pressure of court, and so that’s really going to be something that I would be heavy weighing my evaluations on is judging the truthfulness of their testimony if they decided to take the stand.
[DEFENSE COUNSEL]: All right. Thank you so much. I appreciate that.
Defense counsel challenged prospective juror 28, which the trial court
denied. Defense counsel asked for an additional strike, which the trial court also
19 denied. Defense counsel stated on the record that he had to use one of his
peremptory strikes on prospective juror 28,16 rather than on prospective juror 7,
who sat on the jury and was objectionable to McKinley. See Allen v. State, 108
S.W.3d 281, 282 (Tex. Crim. App. 2003) (setting forth steps for appellant to
preserve challenge of juror for cause for appellate review), cert. denied, 540 U.S.
1185 (2004).
To demonstrate harm, McKinley first must show that the trial court
erroneously denied his challenge for cause of prospective juror 28. See Busby,
253 S.W.3d at 661; see also Davis v. State, 329 S.W.3d 798, 807 (Tex. Crim.
App. 2010) (stating that to demonstrate harm, appellant must show that trial court
erroneously denied one challenge for cause), cert. denied, 132 S. Ct. 128 (2011).
Summarizing the portions of the record set forth above, prospective juror 28
indicated that he was fond of Mrs. Wynn and her family and had a special bond
with them and that it would be hard for him to set that aside. But prospective
juror 28 also stated that he did not have a bias for or against the State; he said
that he could listen to the evidence, and if he had a reasonable doubt, he could
look Mrs. Wynn in the eyes and say that she did not prove the State’s case.
When asked what kind of process he would go through to put that special bond
16 According to the State’s brief, defense counsel used peremptory strikes on prospective jurors 5, 6, 9, 21, 24, 26, 28, 35, 41, and 42; however, documentation showing these strikes was not filed with this court. See Tex. Code Crim. Proc. Ann. art. 35.15(b) (West 2006) (providing that in non-capital felony cases in which the State does not seek the death penalty, the State and defendant are entitled to ten peremptory challenges each).
20 with Mrs. Wynn and her family out of his mind when making a decision at the
close of evidence, prospective juror 28 made clear that he would stick to the facts
and weigh the truthfulness of the witnesses’ testimony.
Viewing the entirety of his voir dire, prospective juror 28 stated that he did
not have a bias for or against the State and that he would not allow his
relationship with Mrs. Wynn’s family to affect his decision making. The record
reflects that although prospective juror 28 may have vacillated initially, his
answers as a whole reflect that he agreed to listen to the evidence and to follow
the law. Reviewing the trial court’s ruling with considerable deference, as we
must, we hold that the trial court did not abuse its discretion by denying
McKinley’s challenge for cause of prospective juror 28. See Anderson v. State,
633 S.W.2d 851, 854 (Tex. Crim. App. 1982) (holding that trial court did not
abuse its discretion by denying challenge for cause because prospective juror
stated that she could set aside her knowledge of the prosecutrix and the State’s
witnesses and determine the case strictly from the evidence and from the trial
court’s charge); Carrasquillo v. State, 742 S.W.2d 104, 111–12 (Tex. App.—Fort
Worth 1987, no pet.) (holding that prospective juror’s long-term friendship with
one of the prosecutors and his statement that he was uncertain how his
acquaintance with a prosecutor would affect his judgment did not establish bias
as a matter of law, and thus trial court did not abuse its discretion by denying
challenge for cause); see also Bell v. State, 724 S.W.2d 780, 797 (Tex. Crim.
App. 1986) (stating that prospective juror is not subject to a challenge for cause
21 “if the juror can lay aside his impression or opinion and render a verdict based on
the evidence presented in court”), cert. denied, 479 U.S. 1046 (1987). We
overrule McKinley’s second point.
V. CONCLUSION
Having overruled McKinley’s two points, we affirm the trial court’s
judgment.
/s/ Sue Walker SUE WALKER JUSTICE
PANEL: GARDNER, WALKER, and MCCOY, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: August 21, 2014