                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-18-00132-CR



      KENNETH DEWAYNE NELSON, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



          On Appeal from the 5th District Court
                 Bowie County, Texas
             Trial Court No. 17F-1099-005




      Before Morriss, C.J., Burgess and Stevens, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                       MEMORANDUM OPINION
           As was his right—the day after voir dire, but before Kenneth Dewayne Nelson’s trial on

five indictments of continuous human trafficking 1 actually began on the merits—Nelson opted to

withdraw his five guilty pleas. 2 Though Nelson claimed the jury panel was hopelessly tainted by

knowledge of his guilty pleas 3 and asked that a new panel be assembled, the trial court denied his

request. The jury convicted Nelson on all indictments, and he was sentenced to five consecutive

life terms. In this appeal of the first of his five cases, we address Nelson’s claim, common to all

five cases, that he should have been afforded a new jury panel. In this case, we affirm his

conviction as to Child Victim #1 because Nelson was not entitled to a new jury panel. 4 As

explained this date in our opinion in the second case, Nelson v. State, cause number 06-18-00133-

CR, we modify the sentencing order in all five cases to provide that Nelson’s five life sentences

will run concurrently, not consecutively, and modify the costs assessed in cases two through five

so that costs will not be duplicated.




1
    See TEX. PENAL CODE ANN. § 20A.03.
2
 A defendant may withdraw his plea of guilty “at any time before the jury retires to deliberate” or, in a trial before the
court, before “the court pronounces judgment or takes the case under advisement.” Mendez v. State, 138 S.W.3d 334,
345 (Tex. Crim. App. 2004).
3
 While the parties voir dired the jury panel, they mentioned several times that Nelson had pled guilty to each of the
offenses. The trial court also told the panel that Nelson had pled guilty and that the selected jury would decide only
his punishment.
4
  In separate opinions issued on this date, we affirm, as modified, Nelson’s other four convictions (cause number 06-
18-00133-CR (as to Child Victim #2), cause number 06-18-00134-CR (as to Child Victim #3), cause number 06-18-
00135-CR (as to Child Victim #4), and cause number 06-18-00136-CR (as to Child Victim #5)).


                                                            2
        In two points of error, Nelson argues that he was entitled to a fresh venire after he withdrew

his guilty pleas. Because the impaneled jury was drawn from a venire that had been told Nelson

pled guilty to the charges, the jury was “hopelessly tainted,” according to Nelson. Nelson argues

that the lack of a new venire violated the Sixth Amendment to the United States Constitution

(“right to a speedy and public trial, by an impartial jury”), Article 1, Section 15, of the Texas

Constitution (“right of trial by jury shall remain inviolate”), and Article 1.12 of the Texas Code of

Criminal Procedure (“right to trial by jury remains inviolate”). See U.S. CONST. amend. VI; TEX.

CONST. art. 1, § 15; TEX. CODE CRIM. PROC. ANN. art. 1.12.

        Nelson’s appellate claims, that the lack of a new venire violated the Texas Code of Criminal

Procedure and Texas Constitution, have not been preserved for our review. In complaining that

the jury had been tainted, Nelson argued that the jury could not be expected to fairly consider his

culpability. His sole trial objection was that

        trial strategy is the purview of counsel. Constitutional rights are the purview of the
        defendant . . . . [T]he defendant, I believe, should be placed in a position, the Court
        having allowed him to withdraw that plea, of de novo . . . presentation to a new
        venire panel that has not been tainted [by h]aving heard him announce that he is
        guilty and having had his own counsel voir dire and speak to them about him being
        guilty . . . .

This is, primarily at least, a complaint of jury taint or partiality.

        Where an objection is subject to more than one interpretation, the party does not preserve

a complaint unless he or she states the grounds for the objection with sufficient specificity so the

trial court is aware of the complaint. Taylor v. State, 939 S.W.2d 148, 155 (Tex. Crim. App. 1996).

A “point of error on appeal must comport with the objection made at trial.” Wilson v. State, 71

S.W.3d 346, 349 (Tex. Crim. App. 2002); see also TEX. R. APP. P. 33.1. Cf. Pena v. State, 285
                                                    3
S.W.3d 459, 464 (Tex. Crim. App. 2009) (“broad constitutional objections and custody objections

‘under the laws of the State of Texas and [the] Constitution of the United States and the State of

Texas,” did not preserve due course of law objection raised on appeal).

       We construe this as an objection under the Sixth Amendment to the United States

Constitution, which guarantees trial before an “impartial jury.” U.S. CONST. amend. VI. Nelson

has not preserved any complaint based in the Texas Constitution or the Texas Code of Criminal

Procedure. We address the federal question.

       Nelson offers as authority Kercheval v. United States, 274 U.S. 220 (1927). Kercheval

pled guilty to mail fraud, apparently believing a plea arrangement was in place. Sentenced to three

years’ confinement, not the three months he had expected, he moved for a new trial, which the

trial court granted. Id. at 221. At the second trial, the State introduced Kercheval’s plea of guilty

from the previous trial. Id. at 221–22. The United States Supreme Court found this to be reversible

error, because in “this country it has not been customary to use withdrawn pleas as evidence of

guilt.” Id. at 225. Kercheval is distinguishable from the case before us. Here, Nelson pled guilty

then withdrew his plea in the same trial, before the same fact-finder. Kercheval was unfairly

confronted with, and his second jury presented with, evidence from a prior trial. That prior trial

and its evidence had become a nullity when a new trial was granted. Thus, as the Supreme Court

explained, “The effect of the court’s order permitting the withdrawal [of Kercheval’s plea of guilty

and grant of a new trial] was to adjudge that the plea of guilty be held for naught.” Id. at 224. We

do not find Kercheval applicable here.



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         More on point are resolutions of similar situations in Texas. In Beasley v. State, 634

S.W.2d 320 (Tex. Crim. App. [Panel Op.] 1982), the defendant pled guilty to the trial court, then

went to the jury for punishment. But the trial court, sua sponte, withdrew Beasley’s plea of guilty

because Beasley denied having used or exhibited a deadly weapon as alleged in the indictment.

Id. at 321. The court found no error in the trial court’s denying Beasley a fresh venire. Id. “To

adopt the rule urged by appellant would allow manipulation of the judicial process: the accused

could plead guilty, and after seeing how damaging the State’s evidence is, he could take the stand

and force a new trial before a new jury by denying an element of the offense. A defendant may

not create reversible error by his own manipulation.” Id.

         In Leal v. State, 730 S.W.2d 72 (Tex. App.—Corpus Christi 1987, no pet.), Leal pled guilty.

When he testified, though, he denied committing the offense of aggravated sexual assault as

alleged in the indictment. The trial court withdrew Leal’s plea of guilty. The trial court rejected

Leal’s argument that the withdrawn plea meant the entire criminal proceeding should begin anew.

The Corpus Christi Court of Appeals affirmed the trial court: “When a defendant pleads guilty

before a jury and, during the trial, changes his plea to not guilty (or the trial court sua sponte

withdraws the plea), the trial proceeds before the same jury.” Id. at 75 (citing Wilson v. State, 698

S.W.2d 145 (Tex. Crim. App. 1985)); 5 Beasley, 634 S.W.2d 320.


5
 Wilson pled nolo contendere and waived a jury trial. When, at trial, he discovered the victim would not testify, he
withdrew his plea of guilty and demanded a jury trial, which the trial court denied. The Texas Court of Criminal
Appeals reversed. In light of the particular circumstances at play, the Texas Court of Criminal Appeals found it “very
clear that in this case the court intended to return the appellant to his same status prior to his plea of nolo contendere
(more specifically, the right to have a jury trial).” Wilson, 698 S.W.2d at 147. Wilson is the genesis for the statement
“[w]hen a defendant pleads guilty before a jury and, during the trial, changes his plea to not guilty, the trial proceeds
before the same jury. The same thing happens if the original plea is not guilty, and is changed later to guilty.” Id.
The court made this statement after distinguishing Wilson’s predicament with an earlier Texas Court of Criminal
                                                            5
        While he was unquestionably entitled to withdraw his initial plea, Nelson’s predicament

was of his own making. He has presented no authority entitling him to a fresh venire panel where

he, knowingly and voluntarily, (1) pled guilty to the trial court, (2) chose to voir dire the venire

panel, which at that point in time was a unitary punishment proceeding, then (3) withdrew his pleas

of guilty and (4) proceeded to a jury trial on guilt.

        If Nelson was concerned that the jury could not divorce itself from what it had been told

the day before—that he had pled guilty and would be presenting only the issue of punishment for

the jury’s decision—he could have opted to exercise various strategies. He could have asked the

trial court for an instruction to the panel to ignore any comments about the earlier guilty pleas, but

did not. He could have urged in an opening statement at trial that the jury ignore the earlier pleas

of guilty, but he opted not to make an opening statement to the jury, as also was his right. He

could have waived trial by jury and asked the court to determine his guilt. He could have persisted

with his guilty pleas. But having told the venire he was guilty and participated in jury selection,

he was not entitled to have the trial court provide a new venire.

        Nelson was not denied a jury. His case falls in the caution zone described in Beasley. Were

he allowed to obtain a new venire panel after pleading guilty and selecting a jury, Nelson would

potentially be allowed to manipulate the judicial process, arguably to his benefit. Based on the

record before us, we cannot say Nelson was entitled to a new venire. Accordingly, we find no

error here. This point of error is overruled.


Appeals opinion relied on by the court of appeals. Even if, as urged by Nelson, this statement was dicta as regards
Wilson’s holding, we find the court’s later citation of and reliance on Wilson in Beasley effectuated the statement’s
authority regarding the situation at hand.

                                                         6
       The judgment and sentence of the trial court are affirmed, except that, as explained in our

companion opinion in cause number 06-18-00133-CR, the sentence in this case will run

concurrently with Nelson’s other sentences.




                                              Josh R. Morriss, III
                                              Chief Justice

Date Submitted:       May 8, 2019
Date Decided:         June 17, 2019

Do Not Publish




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