Richard Alan Hincey v. State

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-19-00423-CR ___________________________

RICHARD ALAN HINCEY, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 371st District Court Tarrant County, Texas Trial Court No. 1617121R

Before Birdwell, Bassel, and Womack, JJ. Memorandum Opinion by Justice Womack MEMORANDUM OPINION

I. INTRODUCTION

Appellant Richard Alan Hincey appeals his convictions for one count of

continuous sexual abuse of a child younger than fourteen and two counts of

indecency with a child by exposure. In one issue, Hincey argues that the trial court

reversibly erred by denying his “several challenges for cause all based on the same

legal issue—the inability of each venireperson to be able to consider the full range of

punishment.” We affirm.

II. BACKGROUND

A. Allegations and Arrest

In September 2018, Larry1 was roughly twelve years old and lived with his

mother, older brother, and Hincey in Hincey’s Fort Worth home. During a

September 30, 2018 phone conversation, Larry told Hincey’s biological daughter,

Ashley, that Hincey had been sexually abusing him. Ashley immediately drove to

Hincey’s house to speak with Larry in person, and Larry disclosed details about the

sexual abuse. At the time, Hincey was out of state for work.

Mother came home a few hours later, and Larry began to disclose even more

details about the abuse to both Mother and Ashley. During this conversation, Hincey

1 Because the complainant in this case was a minor at the time the offenses charged were committed, we use aliases when possible throughout this opinion to protect his identity. See Tex. R. App. P. 9.10(a)(3); 2nd Tex. App. (Fort Worth) Loc. R. 7.

2 called Mother’s cellphone about an unrelated matter, and Mother confronted Hincey

about the sexual abuse. Hincey admitted to Mother that he had performed oral sex

on Larry. Moments later, Hincey spoke with Ashley—who was still at Hincey’s house

with Larry, Mother, and Ashley’s partner—and acknowledged that he had been

sexually abusing Larry for at least four months. Ashley’s partner videotaped the

conversation between Hincey and Ashley.

Later, Detective Benjamin Jones of the Crimes Against Children Unit of the

Fort Worth Police Department was assigned to this case. After reviewing the

evidence of this and a previous outcry by Larry against Hincey in 2016,2 Jones sought

and obtained an arrest warrant for Hincey for the charge of continuous sexual abuse

of a young child. The State eventually charged Hincey with one count of continuous

sexual abuse against a child, two counts of aggravated sexual assault, two counts of

indecency with a child by contact, and two counts of indecency with a child by

exposure. The State’s indictment also included two sexual-offender enhancement

paragraphs alleging two prior felony convictions for indecency with a child.

B. Voir Dire

Hincey elected to have these charges heard before a jury. During defense

counsel’s voir dire, he asked several prospective jurors whether they could consider

“the low end of punishment” if there had been a “prior sex case” or a “prior sex

2 According to Mother, “CPS closed their case” on this earlier matter.

3 offense,” referring to the felony offenses described in the State’s sexual-offender

enhancement paragraphs. Several prospective jurors stated that they could not

consider only two years. Later, defense counsel asked whether a prospective juror

could consider “five years on the aggravated sexual assault?” The trial court

interjected and stated, “Can you clarify your question as to which scenario? You’re

mixing up scenarios. Or if you’re not, you’re not explaining the ranges correctly.”

This conversation then occurred:

[Defense counsel]: Okay. So we’ve got three different charges that he’s been essentially alleged to have committed. There’s three different ranges of punishment.

The continuous is the 25 to life. The aggravated sexual assault is five to 99. It’s auto life if he’s got a prior. And the two indecency cases, either by exposure, fondling, are going to be two to ten or two to 20. You’ve got different ranges of punishment.

Could you consider a minimum two-year sentence if there is a prior sex charge on the two lowest charges?

[Prospective juror]: If there’s a prior, no.

[Trial court]: And you’re going to have to be specific as to what the two lower charges are.

Defense counsel then continued with this line of questioning and seventeen

prospective jurors said that they could not consider “the minimum two years” if there

had been “a prior sex case.” But at least five other prospective jurors stated that they

would need to hear all the evidence before making the determination if they could

consider only two years. During this questioning, defense counsel would alternate

4 between charges and the applicable punishment ranges without clearly delineating

which charges and punishment ranges he was discussing.

After both defense counsel and the State had finished questioning the venire

panel, the trial court entertained challenges for cause. The State expressed that it

would object to defense counsel’s challenges for cause because defense counsel had

“inserted a fact issue.” Defense counsel objected, and after some discussion, the trial

court told defense counsel, “Well then, you did give them a fact as far as indecent

exposure, that it was a sex offense, not just a prior felony offense.”

After granting several of the State’s and agreed challenges, defense counsel

began to make his challenges. When defense counsel specifically challenged

prospective juror number 55 because “she could not consider a minimum of two or a

five,” the trial court stated,

You know, but she said, “He’s been twice, so I couldn’t do it.” I have no idea what that means, and I don’t know what she thinks that you were saying, because that’s when I stopped you and said you’re mixing two things up. And -- and I couldn’t understand which one you were talking about.

So based upon the state of the record, I’m going to deny that challenge because I really don’t know what she thought she was answering based on her answer.

Later, the trial court expressed more confusion over defense counsel’s line of

questioning:

With respect to the two and the five, that’s what really confused me. You were talking about a sex offender notice, and there’s never going to

5 be a five if somebody’s convicted of a sex offense. So I felt like that was misleading.

And, number two, you injected the fact that it’s a sex offense, which makes it neither here nor there for the two on indecent exposure. It would just be the two to 20 no matter what felony it was. And the fact that it’s a sex offense is completely irrelevant.

So that’s -- that was not a question that was based on the actual bare minimum law. You injected a fact, and so I’m going to deny that challenge.

Shortly after, the trial court said that it appeared that defense counsel was

challenging “everyone except for 3, 32, 68, and 77.” Defense counsel replied,

“Correct. I would like to challenge for cause all those numbers except for those.”

The trial court responded,

And that is denied based on what the Court just stated, that you are not entitled to seek a challenge for cause because you injected a fact and not just the law and -- into that question about whether the -- they could consider a minimum of two based on a prior sex offense, not based on a prior felony conviction, which is the law. So that is denied.

Then the following exchange happened:

[Defense counsel]: And we’d ask for additional strikes.

[Trial court]: That’s denied.

[Defense counsel]: Okay. And we’d obviously ask for a running objection.

[Trial court]: That’s denied. I don’t even know what that means.

The trial court then granted some of defense counsel’s challenges for cause.

6 C. The Trial

At trial, Larry testified that during the time of the abuse, Hincey would come

into his bedroom at night and touch Larry’s penis, make Larry touch Hincey’s penis,

and Hincey would place his mouth on Larry’s penis. Larry said that the abuse lasted

for roughly four years. Additionally, both Ashley and Mother testified that Hincey

admitted that he had sexually abused Larry. The State also introduced the videos of

Ashley’s conversation with Hincey that Ashley’s partner had taken the night Mother

and Ashley confronted Hincey. And for enhancement purposes, the State introduced

two prior judgments and sentences for indecency with a child related to Hincey

having previously sexually abused his two biological daughters in 2004.

D. The Jury’s Verdict and Sentencing

The jury found Hincey guilty of continuous sexual abuse of a child and two

counts of indecency with a child by exposure. The jury assessed punishment at forty-

five years’ for the continuous sexual abuse and twenty years’ each for the two counts

of indecency. The trial court rendered judgment accordingly, ordering that the twenty

year sentences run consecutively with the forty-five year sentence. This appeal

followed.

III. DISCUSSION

In his sole issue, Hincey argues that the trial court reversibly erred by denying

his challenges for cause. The State counters that Hincey has failed to preserve this

issue for our review, that the trial court did not abuse its discretion, and that, even if

7 the trial court erred, Hincey was not harmed by the trial court’s decision. We agree

with the State.

A. Preservation

To preserve a complaint about the trial court’s denial of a challenge for cause, a

party must show that he: (1) used all of his peremptory strikes; (2) asked for and was

refused additional peremptory strikes; and (3) was then forced to take an identified,

objectionable juror whom the party would not have otherwise accepted had the trial

court granted his challenge for cause (or had the trial court granted him an additional

peremptory challenge to strike the prospective juror). Buntion v. State, 482 S.W.3d 58,

83 (Tex. Crim. App. 2016). Although a defendant need not specify why a particular

prospective juror is objectionable, his challenge must at least state which particular

prospective juror is objectionable to give the trial judge the opportunity to correct any

error. Fuller v. State, 827 S.W.2d 919, 924–25 (Tex. Crim. App. 1992). A blanket

statement that multiple prospective jurors are objectionable, without designating

which prospective jurors, is not sufficient in and of itself to show that any

objectionable juror served on the jury. Moreno v. State, 587 S.W.2d 405, 412 (Tex.

Crim. App. 1979).

Here, Hincey argues that the trial court erred by denying his challenges for

cause against prospective jurors that he claims could not consider the minimum

punishment for indecency with a child by exposure. But, other than prospective juror

number 55, who was not impaneled, Hincey never specified which prospective jurors

8 were objectionable.3 Instead, Hincey only agreed with the trial court that he was

challenging “everyone except for 3, 32, 68, and 77.” Without the necessary specificity,

Hincey failed to preserve his complaint about the trial court’s denial of his challenges

for cause. See Price v. State, 594 S.W.3d 674, 678 (Tex. App.—Texarkana 2019, no pet.)

(“Because Price failed to specifically identify any other veniremembers he wished to

strike, the record fails to show that Price was forced to accept an objectional juror.

As a result, error is not preserved.”). His failure to preserve the issue for review is

sufficient reason to overrule it on appeal.

B. No Abuse of Discretion

But even if we assumed that Hincey preserved his complaint for our review as

to “everyone except for 3, 32, 68, and 77,” he has failed to demonstrate that the trial

court abused its discretion by denying his challenges for cause. A trial court’s broad

discretion over the jury-selection process will not be disturbed on appeal absent an

abuse of that discretion. Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002). A

prospective juror is challengeable for cause if he has a bias or prejudice against the

defendant or against the law upon which either the State or the defense is entitled to

rely. Tex. Code Crim. Proc. Ann. art. 35.16(a)(9); Gardner v. State, 306 S.W.3d 274, 295

(Tex. Crim. App. 2009). Any prospective juror unable to consider the penalty range

allowed by law is considered biased or prejudiced. Nethery v. State, 692 S.W.2d 686,

Hincey also does not specifically identify in his brief to this court which 3

prospective jurors he found objectionable.

9 691–92 (Tex. Crim. App. 1985); Emery v. State, No. 14-02-00273-CR, 2003 WL

1831500, at *3 (Tex. App.—Houston [14th Dist.] Apr. 10, 2003, no pet.) (mem. op.,

not designated for publication). But before a prospective juror may be excused for

cause on this basis, 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.

It is the proponent of a challenge for cause who carries the burden of establishing that

the challenge is proper. Id. And 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 prejudice well enough to follow the law. Id.

Here, in addition to failing to identify which prospective jurors Hincey believed

to be biased or prejudiced against considering the correct penalty range of any

particular charge, he failed to carry his burden of explaining the law to the venire

panel as a whole. Indeed, the trial court repeatedly expressed to Hincey that he was

vacillating between charges and leaving it unclear as to what punishment ranges

applied to which charges. And even when Hincey appeared to take corrective action

after being urged by the trial court to do so, he again alternated between charges and

the applicable punishment ranges without any clear delineation as to which charges

and punishment ranges he was talking about at any given time. Given Hincey’s failure

to adequately explain the applicable punishment ranges related to their respective

charges, he cannot show that any of the prospective jurors understood the law’s

requirements and still could not overcome a prejudice well enough to follow the law.

10 See id. Therefore, we cannot conclude that the trial court abused its discretion by

denying Hincey’s sweeping challenges for cause. Barajas, 93 S.W.3d at 38.

C. No Harm

Finally, even if the trial court abused its discretion by denying Hincey’s broad

challenges for cause, he has not shown how he was harmed by the trial court’s alleged

error. If an appellate court determines that a trial court erred by denying a

defendant’s challenges for cause, the appellate court generally considers this type of

error a non-constitutional error and conducts a harm analysis under Texas Rule of

Appellate Procedure 44.2(b). Tex. R. App. P. 44.2(b); Johnson v. State, 43 S.W.3d 1, 4

(Tex. Crim. App. 2001). To establish harm from an erroneous denial of a challenge

for cause, a defendant must show on the record that (1) he asserted a clear and

specific challenge for cause, (2) he used a peremptory challenge on the complained-of

prospective juror, (3) he exhausted his remaining peremptory challenges and

requested but was denied additional peremptory strikes, and (4) he identified on the

record the objectionable juror he would have removed with the additional strike. See

Comeaux v. State, 445 S.W.3d 745, 747, 749–50 (Tex. Crim. App. 2014). This

procedure allows the defendant to show that he needed the additional peremptory

strike that he was forced to use on a biased juror and gives the trial judge an

opportunity to correct any error. See id. at 750.

Although the record shows that Hincey challenged an array of unspecified (or

unidentified) prospective jurors for cause and that Hincey requested but was denied

11 additional peremptory strikes, the record does not show whether he used a

peremptory strike on any of the complained-of prospective jurors or that Hincey

identified any objectionable juror on which he would have used an additional

peremptory strike. Thus, Hincey cannot show that he was harmed by the trial court’s

denial of his challenges for cause. See Daniel v. State, 485 S.W.3d 24, 34 (Tex. Crim.

App. 2016); see also Stanley v. State, No. 02-17-00084-CR, 2018 WL 3153542, at *7 (Tex.

App.—Fort Worth June 28, 2018, pet. ref’d) (mem. op., not designated for

publication) (holding that because the record did not show whether appellant used a

peremptory strike on complained-of prospective jurors, appellant was not harmed by

the trial court’s denial of his challenges for cause).

For all of the above reasons, we overrule Hincey’s sole issue on appeal.

IV. CONCLUSION

Having overruled Hincey’s sole issue on appeal, we affirm the trial court’s

judgments.

/s/ Dana Womack

Dana Womack Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: March 25, 2021