Ruiz v. State

747 S.W.2d 535, 1988 Tex. App. LEXIS 801, 1988 WL 31611
CourtCourt of Appeals of Texas
DecidedMarch 23, 1988
DocketNo. 04-87-00348-CR
StatusPublished
Cited by4 cases

This text of 747 S.W.2d 535 (Ruiz 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
Ruiz v. State, 747 S.W.2d 535, 1988 Tex. App. LEXIS 801, 1988 WL 31611 (Tex. Ct. App. 1988).

Opinions

[536]*536OPINION

CHAPA, Justice.

Appellant, Juan J. Ruiz Jr., Jesus Cisne-ros Jr. and Eduardo Cisneros were convicted in a joint trial for the murder of Cesar Flores. Appellant was sentenced to 30 years’ confinement and assessed a $10,-000.00 fine. He has perfected this appeal. We reverse and remand.

Jesus Cisneros Jr. (04-87-00308-CR) and Eduardo Cisneros (04-87-00309-CR) have appealed under their respective cause numbers. An extensive joint opinion is released in those causes on this same date.

Appellant sets out eight points of error in his appeal but complies with TEX.R. APP.P. 74 only with regard to the first point of error. Apparently completely confident of succeeding with his initial point of error, appellant concedes that as to points of error two through eight, his brief is lacking and would probably require supplementation, which has not taken place. Appellant’s brief in this respect is broad, general, global, and fails to sufficiently direct this Court to the record or authorities. However, because of our disposition of a similar complaint in the Cisneros causes, we will not require rebriefing, and will address his point of error number five.

Appellant, like the Cisneros, complains initially that he was denied a fair and impartial jury because Juror Mario Pola, a first cousin of State's witnesses Arturo and Rodrigo Escamilla, was selected as a juror without their knowledge of his blood-relationship to the witnesses.

The record reflects that during the voir dire, although the prospective jurors were advised that Arturo Escamilla was a State witness, Pola failed to disclose he knew him after the District Attorney asked if any juror knew any witness. During the

motion for new trial hearing, although somewhat contradictory at times, Pola testified that he advised the trial judge he was a cousin of Escamilla before the jury was selected. However, the trial judge recalled he was advised by Pola of the possibility of a blood relationship only after the jury had been selected and before it was sworn. Regardless, this information regarding the relationship of Pola and the Escamillas was not revealed to counsel for either side by the trial judge. The trial proceeded with Pola as a member of the jury. Although an alternate juror was selected at the outset, she substituted for another excused juror several days into the trial, and before counsel for appellants had any knowledge of the relationship of Pola and the Escamil-las. Appellant first became aware of the relationship between Pola and the Escamil-las during the trial but made no motion for a mistrial or objected in any other manner. However, the record fails to indicate appellant knew Pola had communicated with the judge about the relationship until the hearing on the motion for a new trial.

The critical nature of the testimony of Arturo and Rodrigo Escamilla is readily apparent when considering the theories pursued by the State and the defense during the trial. The State contended that the deceased, who was in his truck, was first shot by Jesus Cisneros Jr. from the apartment balcony above. The appellant and the Cisneros asserted a self-defense theory contending Jesus Cisneros Jr. was fired at first by the deceased when on ground level, and only then responded with fire. The Escamilla brothers were the only State eye witnesses and they testified the firing commenced from the balcony. Thus, the credibility of the Escamilla brothers was crucial to establish the case for the State and to destroy the self-defense theory of the appellant and the Cisneros.

In Von January v. State, 576 S.W.2d 43 (Tex.Crim.App.1978), the Court reversed the conviction when a prospective juror denied knowing the accused and it was later discovered he had known the accused for [537]*537many years. In reversing, the Court stated:

... It was for defense counsel, and not the prospective juror, to decide whether Dunn’s relationship to the Parkers made him unacceptable and subject to a peremptory challenge. Dunn’s failure to truthfully answer the question propounded to him prevented defense counsel from making this determination. When a partial, biased, or prejudiced juror is selected without fault or lack of diligence on the part of defense counsel, who has acted in good faith upon the answers given to him on voir dire not knowing them to be inaccurate, good ground exists for a new trial. Norwood v. State, supra, and cases cited therein.

Von January v. State, 576 S.W.2d at 45; Norwood v. State, 123 Tex.Crim. 134, 58 S.W.2d 100 (1933); Bolt v. State, 112 Tex.Crim. 267, 16 S.W.2d 235 (1929); Adams v. State, 92 Tex.Crim. 264, 243 S.W. 474 (1921).

The State contends the appellant has waived any complaint because he failed to sufficiently pursue questioning of Pola during voir dire, and did not move for a mistrial upon discovering Pola’s relationship with the Escamillas during the trial. The State further contends that the trial judge had no obligation to disclose to the appellant what he had been told by Pola.

It is not lack of diligence for an accused to believe what a prospective juror states. To require an accused to assume a prospective juror is untruthful and irritate the juror with accusing questions, would most certainly result in a prejudiced juror. In this case, Pola indicated he did not know Escamilla in answer to questions of the District Attorney, and appellant was entitled to rely on that answer.

Although there is contradiction as to what Pola actually related to the trial judge, the matter should have nevertheless been revealed to the parties in order that the parties could have decided what action, if any, they wished to take. “It was for defense counsel ... to decide whether [Pola’s] relationship to [the Escamillas] made him unacceptable and subject to a peremptory challenge.” Von January v. State, 576 S.W.2d at 45.

At issue then is whether the appellant’s failure to object in a form of a requested mistrial or otherwise upon discovering the alleged defect, amounted to a waiver or lack of diligence.

‘The purpose of an objection is to challenge the correctness of the action by the trial court to the end that such action may be corrected by the court itself, if deemed erroneous, and to lay the foundation for its review, if necessary, by the appropriate appellate tribunal; and the accused cannot remain silent, gambling on his chances for a favorable verdict, and then, when the verdict has gone against him, raise objections which he knew of and which could have been raised during trial.’ 24 C.J.S., Criminal Law, Section 1670, at page 1063.

Rogers v. State, 640 S.W.2d 248, 264 (Tex. Crim.App.1982) (on State’s second motion for rehearing).

As a general rule, alleged errors on appeal will not be considered unless they have first been brought to the attention of the trial judge by proper objection at the time during the trial. Esquivel v. State, 595 S.W.2d 516 (Tex.Crim.App.1980) (en banc), cert. denied, 449 U.S. 986, 101 S.Ct. 408, 66 L.Ed.2d 251 (1980).

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747 S.W.2d 535, 1988 Tex. App. LEXIS 801, 1988 WL 31611, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ruiz-v-state-texapp-1988.