Opinion issued October 20, 1016




                                        In The

                                Court of Appeals
                                       For The

                            First District of Texas
                              ————————————
                                NO. 01-16-00058-CR
                             ———————————
                       MICHAEL SINGLETON, Appellant
                                           V.
                        THE STATE OF TEXAS, Appellee


                     On Appeal from the 230th District Court
                             Harris County, Texas
                         Trial Court Case No. 1446669


                           MEMORANDUM OPINION

      After the jury found Michael Singleton guilty of failure to register as a sex
offender, the trial court sentenced Singleton to 40 years’ imprisonment in the
Texas Department of Criminal Justice Institutional Division. Singleton raises as
his sole point of error the trial court’s failure to grant his motion to dismiss the jury
panel. We affirm.
                                   BACKGROUND

      In October 2014, Singleton was indicted for failure to register as a sex
offender. During voir dire, Singleton’s counsel asked, “How many of you here
believe that Mr. Singleton has been previously convicted of a sexual assault crime
which requires registration?” In response, jury panel member 29 raised his hand
and explained that he based his belief on Singleton’s indictment. Singleton’s
counsel repeated his question and received affirmative responses from jury panel
members 1, 2, 3, 4, 6, 7, 8, 9, 11, 12, 13, 14, 15, and 29. At that point, the trial
court interrupted and explained:

             Each and every single one of us, including this man right here,
      is presumed to be innocent unless the government presents evidence
      to convince beyond a reasonable doubt that he is indeed guilty. That
      includes presenting evidence that he is the person that has been
      convicted of that offense . . . It’s their job to do it . . . . But until they
      present it, how do you know?

Singleton’s counsel then asked the jurors if they had changed their answers in light

of the trial court’s instructions, and jury panel members 1, 2, 3, 4, 5, 6, 7, 8, 10, 11,

12, 13, 14, and 15 replied that they had changed their minds. Jury panel member 9

remained convinced that Singleton had committed an offense for which

registration is required based on the indictment.

      Singleton’s counsel then moved to strike the panel, contending that the

entire panel was improperly “tainted” because at first many of the jurors believed

that Singleton had committed an offense requiring registration prior to the

introduction of evidence. Singleton’s counsel renewed his objection before and


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after the jury strikes were made by the court. The trial court struck for cause jury

panel members 1, 2, 6, 8, 9, 10, 14, 15, 17, and 29. During all three objections,

Singleton’s counsel never requested additional peremptory challenges and never

identified an objectionable juror who sat on the panel because Singleton had used

all his peremptory challenges.

                                   DISCUSSION

I.    Standard of Review and Applicable Law

      A prospective juror is subject to challenge for bias under the Code of

Criminal Procedure, but that challenge may be waived. See TEX. CODE CRIM.

PROC. ANN. art. 35.16 §§ 9, 11 (West 2005). Further, while the United States and

Texas Constitutions provide a constitutional right to an impartial jury, that right

may also be waived. See State v. Morales, 253 S.W.3d 686, 697 (Tex. Crim. App.

2008) (holding that the Sixth Amendment right to an impartial jury may be

waived); Jones v. State, 982 S.W.2d 386, 391 (Tex. Crim. App. 1998) (holding that

the Texas constitutional right to an impartial jury affords no greater protection than

that provided by the Sixth Amendment). To preserve an objection to the denial of

a challenge for cause, counsel must (1) exercise a peremptory challenge on the

objectionable panel member, (2) exhaust all peremptory challenges, (3) request,

and be denied, additional peremptory challenges, and (4) identify another




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objectionable juror who sat on the case because counsel used all his peremptory

challenges. Johnson v. State, 43 S.W.3d. 1, 5–6 (Tex. Crim. App. 2001).

      We review a trial court’s decision to deny a challenge for cause by looking

at the entire record to determine whether sufficient evidence supports the ruling.

Davis v. State, 329 S.W.3d. 798, 807 (Tex. Crim. App. 2010) (citing Feldman v.

State, 71 S.W.3d. 738, 744 (Tex. Crim. App. 2002)). “The test is whether a bias or

prejudice would substantially impair the panel member’s ability to carry out the

juror’s oath and judicial instructions in accordance with the law.” Id. (citing

Gardner v. State, 306 S.W.3d. 274, 295 (Tex. Crim. App. 2009)). In applying this

test, we must afford considerable deference to the trial court’s ruling because the

trial judge is in the best position to evaluate a panel member’s demeanor and

responses. Id. A trial court’s ruling on a challenge for cause may be reversed only

for a clear abuse of discretion. Id. (citing Gardner, 306 S.W.3d. at 296). “When a

panel member’s answers are vacillating, unclear, or contradictory, we accord

particular deference to the trial court’s decision.”   Id.   (citing Gardner, 306

S.W.3d. at 296).

      Before a panel member can be excused for cause, the court must explain the

law and must ask the panel members whether they can follow that law irrespective

of their personal views. Id. The burden of establishing that a challenge is proper

rests with its proponent. Id; Castillo v. State, 913 S.W.2d. 529, 534 (Tex. Crim.



                                        4
App. 1995) (citing Hernandez v. State, 757 S.W.2d. 744, 753 (Tex. Crim. App.

1988)). That burden is not met until the proponent shows that the panel member

understood the law and could not overcome his prejudice well enough to follow the

law. Davis, 329 S.W.3d. at 807.

II.   Analysis

      Singleton argues on appeal that the trial court erred in overruling his

objection to strike the entire panel for bias, and that the error violated his federal

and Texas constitutional right to an impartial jury, as well as his statutory right to

strike biased panel members for cause. See TEX. CONST. art. 1 § 10; U.S. CONST.

amend.VI; TEX. CODE CRIM. PROC. ANN. art. 35.16 § 9. Singleton’s right to an

impartial jury is subject to waiver. See TEX. CODE CRIM. PROC. ANN. art. 35.16 §§

9, 11; Morales, 253 S.W.3d at 697; Jones, 982 S.W.2d at 391. To preserve error,

Singleton needed to identify an objectionable panel member who was seated and

request additional peremptory strikes to remove the juror.         See Johnson, 43

S.W.3d. at 4–5. In this case, counsel did neither. Accordingly, we hold that

Singleton has waived any error.

      Even had Singleton identified an objectionable juror, he failed to satisfy his

burden to show bias because he did not demonstrate that any of the selected jurors

could not overcome their prejudice well enough to follow the law. See Castillo,

913 S.W.2d. at 534; Davis, 329 S.W.3d. at 807. Although jury panel members 5,



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7, and 11 gave vacillating responses to Singleton’s question regarding whether

they believed Singleton had been convicted of an offense that required registration,

we accord particular deference to the trial court’s decision.      See Davis, 329

S.W.3d. at 807.    We hold that the trial court did not abuse its discretion in

overruling Singleton’s objections to the jury panel.

                                  CONCLUSION

      We affirm the judgment of the trial court.




                                               Jane Bland
                                               Justice

Panel consists of Justices Bland, Massengale, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




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