      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-07-00473-CR



                                    David Ray Bell, Appellant

                                                  v.

                                   The State of Texas, Appellee


          FROM THE COUNTY COURT AT LAW NO. 5 OF TRAVIS COUNTY
NO. C1CR 6722298, HONORABLE NANCY WRIGHT HOHENGARTEN, JUDGE PRESIDING



                             MEMORANDUM OPINION


                A jury convicted David Ray Bell of the offense of driving while intoxicated. See

Tex. Penal Code Ann. § 49.04 (West 2003). The trial court assessed punishment at 30 days’

confinement and a $1,000 fine, but suspended imposition of the sentence and placed Bell on

community supervision for 18 months. In a single issue on appeal, Bell asserts that, during

jury selection, the trial court abused its discretion in denying a challenge for cause. We will affirm

the judgment.


                                   STANDARD OF REVIEW

                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 the venireperson’s demeanor

and responses. Russeau v. State, 171 S.W.3d 871, 879 (Tex. Crim. App. 2005); Blue v. State,

125 S.W.3d 491, 497 (Tex. Crim. App. 2003). We will reverse a trial court’s ruling on a challenge
for cause “only if a clear abuse of discretion is evident.” Blue, 125 S.W.3d at 497. “We review the

trial court’s decision in light of the venireperson’s voir dire as a whole. When the record does not

contain a clearly objectionable declaration by the venireperson, or the record demonstrates a

vacillating or equivocal venireperson, we accord great deference to the trial judge who had the better

opportunity to see and hear the person.” Swearingen v. State, 101 S.W.3d 89, 99 (Tex. Crim. App.

2003). “The trial court is able to consider important factors such as demeanor and tone of voice that

do not come through when reviewing a cold record.” Banda v. State, 890 S.W.2d 42, 54 (Tex. Crim.

App. 1994); Bell v. State, 233 S.W.3d 583, 591 (Tex. App.—Waco 2007, pet. ref’d). In reviewing

a trial court’s ruling on a challenge for cause, we review the totality of the voir dire testimony to

determine whether it supports the trial court’s finding with respect to whether the prospective juror

is able to follow the law as instructed. See King v. State, 29 S.W.3d 556, 568 (Tex. Crim. App.

2000); Murphy v. State, 229 S.W.3d 334, 339 (Tex. App.—Amarillo 2006, pet. ref’d).


                                            ANALYSIS

               During jury selection, counsel for Bell asked whether the prospective jurors could

assess the minimum punishment assessed by law—three days and a one dollar fine. Venireperson

Ms. Esmon answered, “I don’t feel like that’s enough time.” Counsel asked in response, “So do

you think you could ever give just three days and one dollar fine to someone who you found guilty

of DWI?” Ms. Esmon answered, “No.” Counsel then asked if anyone else agreed with Ms. Esmon.

Four venirepersons, including Mr. Gatto, indicated agreement with Ms. Esmon by raising

their hands.

               Later, during individual voir dire, Mr. Gatto was asked specific questions about his

earlier agreement with Ms. Esmon:

                                                  2
The court:   We had a question about punishment, and Mr. Reposa had asked you
             about whether you could agree to sentence—you can imagine a
             circumstance where three days and a dollar fine—would be
             appropriate if someone was convicted of misdemeanor DWI, and you
             said no.

Mr. Gatto:   That’s right.

The court:   Let me ask you why.

....

Mr. Gatto:   It just doesn’t seem like enough punishment.

The court:   What do you think—just curious, what do you think would be
             appropriate?

Mr. Gatto:   Well, at least a week.

....

The court:   But what about three days? I mean, you have to be able to consider
             the full range of punishment. That means you have to be able to
             consider it.

Mr. Gatto:   Right.

....

The court:   You have to be able to consider three days. Three days and no
             probation, you have to be able to consider that. If you cannot
             consider that, that’s okay, I just need to know that.

Mr. Gatto:   Agree that that would be fair if someone was—

The court:   That you would consider it, that you would consider that you could,
             under any—that you could imagine a set of circumstances where
             three—you would say, you know what, a week’s not necessary.
             Three days is appropriate in this particular case, I just need to know
             if you can do that or not.

Mr. Gatto:   I can consider it.

The court:   Okay.

                                       3
               At this point, counsel for Bell expressed concern that there was a difference between

being able to “consider” a certain punishment range and being able to “give” a certain punishment

range. The court then sought to clarify Mr. Gatto’s apparently contradictory answers:


       Now . . . do you understand, though, what the difference is, meaning that basically
       when we say “consider,” that means you’re open to the full range. You could
       consider giving three days, you could consider giving a week, you can consider
       giving up to 180 days. What [counsel]’s saying is, you can’t say that you would
       consider it at the same time that you’re saying “I can’t give three days.” So it’s okay
       if you’ve changed your mind or because you understand things differently, but you
       can’t answer both ways, is what he’s saying, and that’s true.


Counsel for the State sought to clarify what the court was asking:


       Ms. Rowan:     Could you imagine a set of circumstances—where [three days] might
                      be something in your mind that would be appropriate? Could you
                      consider—is there something out there where you might think
                      that’s—that’s a fair sentence?

       Mr. Gatto:     I’m open to that.

       Ms. Rowan:     Okay.

       Mr. Gatto:     Yeah.

       The court:     Okay. And that—you understand that’s different from what you
                      originally said?

       Mr. Gatto:     I do.


Finally, counsel for Bell asked Mr. Gatto one last question:


       Mr. Reposa:    That three days is a sentence that you could give under the
                      appropriate facts, you could give a three-day sentence?



                                                 4
       Mr. Gatto:     (Moving head up and down.)

       The court:     I need you to say yes or no.

       Mr. Gatto:     Yes.

       The court:     Thank you.


               Counsel for Bell challenged Mr. Gatto for cause, and the trial court denied the

challenge. Counsel then used his final peremptory strike to exclude Mr. Gatto from the jury.

Counsel asked the trial court for an additional peremptory strike to exclude another venireperson

from the jury. The trial court denied counsel’s request.

               “A challenge for cause is an objection made to a particular juror, alleging some fact

which renders the juror incapable or unfit to serve on the jury.” Tex. Code Crim. Proc. Ann. art.

35.16(a) (West 2006). A prospective juror may be challenged for cause if he has a bias or prejudice

against any of the law applicable to the case upon which the defense is entitled to rely. Id. art.

35.16(c)(2). “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 law.” Feldman v. State,

71 S.W.3d 738, 744 (Tex. Crim. App. 2002). Before a prospective juror can be excused for cause

on this basis, however, the law must be explained to him and he must be asked whether he can

follow that law regardless of his personal views. Jones v. State, 982 S.W.2d 386, 390 (Tex. Crim.

App. 1998). “The proponent of a challenge for cause has the burden of establishing his challenge

is proper.” Feldman, 71 S.W.3d at 747. “The proponent does not meet his burden until he has

shown that the venireman understood the requirement of the law and could not overcome his

prejudice well enough to follow it.” Id.

                                                 5
               Jurors must be able to consider the full range of punishment for the crime as defined

by the law. Sadler v. State, 977 S.W.2d 140, 142 (Tex. Crim. App. 1998). A venireperson “must

be able to keep an open mind with respect to punishment until [he] hears the evidence in the

case being tried.” Johnson v. State, 982 S.W.2d 403, 406 (Tex. Crim. App. 1998). A venireperson

who states that he could not consider the full range of punishment for any offense of which the

accused might be found guilty is challengeable for cause for having a bias or prejudice against

the law. Ladd v. State, 3 S.W.3d 547, 559 (Tex. Crim. App. 1999). However, a venireperson who

initially indicates an inability to consider the full range of punishment may be rehabilitated through

further questioning by the prosecutor or the trial court. See Von Byrd v. State, 569 S.W.2d 883, 891

(Tex. Crim. App. 1978); Westbrook v. State, 846 S.W.2d 155, 160-61 (Tex. App.—Fort Worth 1993,

no pet.).

               After reviewing the totality of Mr. Gatto’s voir dire testimony, we conclude that

the record supports the trial court’s finding that Mr. Gatto would be able to follow the law as

instructed. See Murphy, 229 S.W.3d at 339. Although Mr. Gatto initially indicated that he could

not “give” the minimum punishment allowed by law, he later stated that he “can consider it.” Still

later, when asked by the State if three days was a “fair sentence,” Mr. Gatto stated, “I’m open to

that.” Finally, when asked by defense counsel if, “under the appropriate facts,” he “could give a

three day sentence,” Mr. Gatto answered, “Yes.” On this record, we must defer to the trial court’s

discretion in denying Bell’s challenge for cause. See Blue, 125 S.W.3d at 499. We overrule Bell’s

sole issue on appeal.




                                                  6
                                       CONCLUSION

              We affirm the judgment of the trial court.




                                            _____________________________________________

                                            Bob Pemberton, Justice

Before Chief Justice Law, Justices Pemberton and Waldrop

Affirmed

Filed: July 11, 2008

Do Not Publish




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