
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-09-00183-CR


Jimmy Walker, Appellant

v.

The State of Texas, Appellee




FROM THE DISTRICT COURT OF BASTROP COUNTY, 423RD JUDICIAL DISTRICT
NO. 13,497, HONORABLE CHRISTOPHER DUGGAN, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N

		A jury convicted Jimmy Walker of possession of a controlled substance with intent
to deliver.  See Tex. Health & Safety Code Ann. § 481.112(b) (West 2010).  Punishment was
assessed at two years' confinement in state jail.  Walker appeals, arguing that the trial court abused
its discretion by denying his challenges for cause to two potential jurors.  We will affirm.

FACTUAL AND PROCEDURAL BACKGROUND
		Walker was indicted for possessing less than a gram of cocaine with intent to
distribute.  He pleaded not guilty and elected to have a jury trial.  Two of the veniremembers,
Anthony Hostetler and Curtis Kelly, were deputies with the Travis County Sheriff's Department. 
During voir dire, both sides questioned the deputies as to whether they could be fair and impartial
jurors.  The deputies initially indicated some misgivings, but under further questioning by the court
they eventually stated that they believed they could be fair and impartial.  Walker nevertheless
attempted to challenge both deputies for cause.  The court overruled the challenges.
		Walker then used peremptory challenges to remove the deputies from the venire. 
After he did so, he asked the court for two additional peremptory challenges.  The court denied
his request.
		Walker was convicted after a jury trial and sentenced to two years' state jail time. 
He now appeals.

STANDARD OF REVIEW
		We review a trial court's ruling on a challenge for cause with considerable deference
because the trial judge is in the best position to evaluate a veniremember's demeanor and responses. 
Gardner v. State, 306 S.W.3d 274, 295-96 (Tex. Crim. App. 2009).  A trial judge's ruling on a
challenge for cause may be reversed only for a clear abuse of discretion.  Id. at 296.  When a
veniremember's answers are ambiguous, vacillating, unclear, or contradictory, we give particular
deference to the trial court's decision.  Id.

DISCUSSION
		Walker argues that the trial court abused its discretion by denying his challenges for
cause to veniremembers Hostetler and Kelly.  He further argues that because the court denied his
challenges for cause, he was forced to use peremptory strikes to remove Hostetler and Kelly from
the venire, depriving him of the ability to use those strikes on other veniremembers.
		Because Walker's argument turns on the exchanges that occurred during voir dire,
we will reproduce the relevant exchanges in detail.  But first, to summarize, Kelly initially suggested
in response to defense-counsel questioning that he would prefer to hear Walker testify.  He also
suggested that his experience in law enforcement might color his view of the proceedings.  Under
further questioning, however, Kelly stated that he would follow the instructions given him and could
be fair.  Hostetler, similarly, initially suggested that his law-enforcement background might bias him
against Walker.  Under further questioning, however, he stated that he could put his bias aside and
be fair and impartial.
		The first relevant exchange occurred when defense counsel asked the entire venire: 
"If the defendant elects to not testify, for whatever reason, who's going to hold that against him? 
Raise your hand.  Mr. Kelly, you would.  Why?"  Kelly responded: "It's going to leave an element
of doubt in my mind as to why he doesn't want to tell his side."  The conversation continued:

Kelly:	I agree that I want to hear the truth from the individual involved . . . .

Defense Counsel:  I guess what I'm asking you is, if he doesn't [testify], are you
going to hold it against him?

Kelly:  I'll have to wait.

Defense Counsel:  But a while ago you said you would.  And now you don't.  Now--

Kelly: I would want to hear the whole story.

Defense Counsel: If you didn't hear it from the defendant, could you give him a fair
trial? . . . .

Kelly: I'd want to hear his story.

Defense Counsel: . . . . Do you feel he's guilty, otherwise he wouldn't have been
indicted if he wasn't guilty?  Do you think that's true?

Kelly: Not necessarily.

. . . . 

Defense Counsel: Deputy, you answered a couple of my questions, or at least one of
my questions, was you want to hear both sides of the story.  And that you didn't
know, and that's that.  You want to hear both sides.  You want to hear that young
man's side of the story.

Kelly: If I have a choice I want to.

Defense Counsel: If you don't hear that side of the story, do you--are you going to
be fair?

Kelly: I'll assess all of the evidence presented to me.

Defense Counsel: Do you think you'll be fair?

Kelly: I'll make a fair judgment with the evidence presented me.

Defense Counsel: Are you coming in here unbiased?

Kelly: I don't have anything against the man.

Defense Counsel: The fact that you've been in law enforcement as long as you have,
does that lend you some bias?

Kelly: I think it gives me some insight to what's going on here.

. . . .

Prosecutor: Deputy Kelly, we got it.  You can--that talking about the both sides of
every story and stuff, you understand how trials works [sic] over 16 years.  So we
don't need to go into that.  But the Judge will give you specific instructions.  And if
he tells you, if the defendant doesn't testify that you are not to refer, or are allowed
to refer to that fact while you are a juror, can you follow that instruction?

Kelly: Yes, sir.

Prosecutor: And you will not consider that fact for any purpose, whatsoever.  Can
you follow that instruction?

Kelly: Yes.

Prosecutor: That's part of what you do with your life, you follow instructions.

Kelly: Yes.

Prosecutor: So is your status as a Deputy Sheriff going to interfere with your ability
as a juror if you sit on this jury?

Kelly: No, sir.

. . . .

Defense Counsel: Deputy, when you said that you wanted to hear both sides of the
story--

Kelly: I'd like to hear both sides of it, yes, sir.

Defense Counsel: And maybe it's the way I interpret that, or the way you said it, or
both.  It made me feel like, without that, even though you say you can--you are
probably going to have [a] hard time being fair; is that true?

Kelly:  No.

	The questioning of Hostetler proceeded similarly:

Defense Counsel: Do you think that the fact you've been in law enforcement for 17
years you can be fair and impartial to this young man?

Hostetler: I'd like to think I could.

Defense Counsel: And I know that.

Hostetler: I understand with me working out there for 17 years and dealing with this
stuff, you know, plus dealing with reasonable suspicion and knowing all that stuff--

Defense Counsel: There's no way you're ever going to be able to keep an open mind.

Hostetler: I will come--I will probably be coming in somewhat prejudiced.

The Court: And let me ask you this, Mr. Hostetler.  Would that somewhat
prejudiced--just paraphrasing your words--would that prevent you in this case from
being fair and impartial?

Hostetler: I don't think it would.  I would listen to everything that's presented and
according to the laws.  I help uphold the laws.  So I think I would be able to do so
here, also.  

The Court: And forgive me for nailing it down further.  But I really need to know,
will you or will you not.  It's not[] I think, or I could, or I hope.  We really need to
know . . . . You know, even though you have that prior law enforcement training, can
you--you don't have any problem with the presumption of innocence or the standard
of proof--the beyond a reasonable doubt, or anything like that?

Hostetler: No problem.

The Court:  Even though you do have that law enforcement background, do you think
you could be fair and impartial to this gentleman that's charged with this offense?

Hostetler: Yes.

Defense Counsel: If I may.  With all due respect to you, sir, Judge, I think the fact
that Mr. Hostetler was honest enough to say, "I hope I can," that in and of itself
would lend to his prejudice or bias whether he intended it or not.  The mere fact that
he answered honestly like that tells me that there's no way he's going to have an
unbiased opinion.

The Court: I believe there's--I believe through further questioning by the Court, and,
once again, you've heard his argument, can you be fair and impartial?  And the last
thing you told me, Mr. Hostetler, was that you could.  Is that correct?

Hostetler: Yes.


		Taken in isolation, certain parts of these exchanges do make it appear as though
Hostetler and Kelly might be biased against Walker.  Taken as a whole, however, these exchanges
clearly show that the trial court had a rational basis for concluding that Hostetler and Kelly could be
fair and impartial jurors.  Thus, the court did not abuse its discretion by refusing to strike Hostetler
and Kelly for cause.  See Gardner, 306 S.W.3d at 295-96.  It follows that Walker was not harmed
by having to use peremptory strikes to remove Hostetler and Kelly from the venire.  We overrule
Walker's issue.

CONCLUSION
		For the reasons stated above, we affirm the trial court's judgment.

						__________________________________________
						David Puryear, Justice
Before Justices Patterson, Puryear and Pemberton
Affirmed
Filed:   October 14, 2010
Do Not Publish
