      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-03-00338-CR



                                 Danny Allen Farrell, Appellant

                                                  v.

                                   The State of Texas, Appellee




             FROM THE COUNTY COURT AT LAW NO. 2 OF BELL COUNTY
           NO. 2C01-07856, HONORABLE JOHN BARINA, JR., JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant Danny Allen Farrell was charged with carrying an unlawful weapon. See

Tex. Pen. Code Ann. § 46.02 (West 2003). A jury convicted him of the offense, and the trial court

sentenced him to three days in jail plus a $750 fine and court costs. By one issue, Farrell appeals the

conviction, asserting that the trial court erred in refusing to grant his challenges for cause of three

veniremembers. We will overrule Farrell’s issue and affirm his conviction.


                                           DISCUSSION

               Officer Steven Taylor, an officer with the Temple Police Department, was the only

witness who testified for the State during its case in chief.1 Thus, when Farrell was provided a list




       1
          During voir dire, it appeared that defense counsel anticipated two officers would testify for
the State.
of prospective jurors and three of the first ten jurors were Temple police officers, Farrell requested

a jury shuffle. The three police officers, however, remained among the first ten panelists. Farrell

challenged each of the three officers for cause, and the trial court denied those challenges. He claims

on appeal that the trial court erred in denying his challenges for cause.

               A challenge for cause is defined as an objection made to a particular juror, alleging

some fact that renders him incapable or unfit to serve on the jury. Tex. Code Crim. Proc. Ann. art.

35.16(a) (West Supp. 2004). The code of criminal procedure provides that a challenge for cause may

be made by either the State or the defense for any of the following reasons:


         1. the juror is not a qualified voter in the state and county;

         2. the juror has been convicted of theft or any felony;

         3. the juror is under indictment or other legal accusation for theft or any felony;

         4. the juror is insane;

         5. the juror has such a defect or disease as to render him unfit for jury service;

         6. the juror is a witness in the case;

         7. the juror served on the grand jury that found the indictment;

         8. the juror served on a petit jury in a former trial of the same case;

         9. the juror has a bias or prejudice in favor of or against the defendant;

       10. from hearsay, or otherwise, the juror has established in his mind such a
           conclusion as to the guilt or innocence of the defendant as would influence him
           in his action in finding a verdict; and

       11. the juror cannot read or write.




                                                  2
Id.; see also id. art. 35.16(c) (defense may challenge for cause if prospective juror is related to person

injured by commission of offense or to prosecutor or if prospective juror has bias or prejudice against

any law applicable to case). Farrell did not specify on which of the enumerated reasons he was

basing his challenge for cause. A challenge for cause can be properly asserted on grounds that are

not specifically enumerated in article 35.16 of the code of criminal procedure, when the challenge

is based on facts that show that the prospective juror would be “incapable or unfit to serve on the

jury.” Mason v. State, 905 S.W.2d 570, 577 (Tex. Crim. App. 1995). Challenges that are not based

on any ground specifically enumerated in the statutes are ordinarily addressed to the sound discretion

of the trial judge. Id.

                During voir dire, Farrell’s defense counsel questioned venire person number one,

Officer Garrett, as to whether he could be fair and impartial:


        [DEFENSE COUNSEL]:                          Okay. Officer Garrett, can you be fair and
                                                    impartial?

        PROSPECTIVE JUROR GARRETT:                  Yes, sir.

        [DEFENSE COUNSEL]:                          You sure?

        PROSPECTIVE JUROR GARRETT:                  Yes, sir.


                Temple police officers Sabourin and Childress responded similarly:


        [DEFENSE COUNSEL]:                          Could you be fair and impartial?

        PROSPECTIVE JUROR SABOURIN: Yes, sir.

        [DEFENSE COUNSEL]:                          And Officer Childress?



                                                    3
       PROSPECTIVE JUROR CHILDRESS: I believe so.

       ....

       [DEFENSE COUNSEL]:                        Senior officer. You could be fair and
                                                 impartial and listen to the facts?

       PROSPECTIVE JUROR CHILDRESS: Yes.


              Later, Farrell’s defense counsel questioned the officers about their ability to be fair

and impartial with regard to the specific witnesses that were to testify for the State, whom the

officers acknowledged that they knew personally:


       [DEFENSE COUNSEL]:                      . . . . And Mr. Garrett, how are you going to
                                               take their testimony? Are you going to
                                               automatically believe them because they’re
                                               a fellow Temple police officer?

       PROSPECTIVE JUROR GARRETT: No, sir.

       [DEFENSE COUNSEL]:                      You’re telling me that you’re not going to
                                               take their word over anybody else simply
                                               because they’re a Temple police officer, the
                                               same as you are?

       PROSPECTIVE JUROR GARRETT: No, sir.

       [DEFENSE COUNSEL]:                      So I’m going to be in good shape then if you
                                               ever come on a case and said, I had
                                               information from these officers and I acted
                                               on it, then I can take it that you don’t
                                               necessarily believe that information is true;
                                               is that right?

       PROSPECTIVE JUROR GARRETT: It would be -- it depends on the case-by-case
                                  basis.




                                                4
[DEFENSE COUNSEL]:                But I’m saying, you’re generally going to --
                                  not going to accept everything they tell you?
                                  They tell you --

PROSPECTIVE JUROR GARRETT: That’s correct.

....

[DEFENSE COUNSEL]:                  Are you going to accept it, Mr. Childress?

PROSPECTIVE JUROR CHILDRESS: I’m not going to take everything they say
                             at face value. I have to look at it myself a
                             little bit and see.

....

[DEFENSE COUNSEL]:                  Now, do you think you could really be fair
                                    and listen to a fellow police officer testify
                                    from your own agency, somebody you
                                    may go have coffee with tomorrow?
                                    You’re saying you can be fair?

PROSPECTIVE JUROR CHILDRESS: Yes, because -- the reason being, I don’t
                             want to work with a dishonest policeman,
                             and I won’t work with a dishonest
                             policeman. So if he was up there
                             materially just misrepresenting the truth,
                             then I wouldn’t --

[DEFENSE COUNSEL]:                  Well, how would you know that? I mean,
                                    I’m just saying --

PROSPECTIVE JUROR CHILDRESS: Well, by sitting on the panel and neutrally
                             observing and judging.

....

[DEFENSE COUNSEL]:                  You can take the jury box and be just as
                                    fair, and if you have to rule against them,
                                    you can do it?

PROSPECTIVE JUROR SABOURIN: If it comes down to it, yes sir.

                                   5
       [DEFENSE COUNSEL]:                          And you could face them the next day
                                                   when you see them?

       PROSPECTIVE JUROR SABOURIN: Yes, sir.


               The record reveals that all three of the police officers expressed their belief that they

could be fair and impartial in listening to the evidence presented. All three stated that they would

not instinctively believe a witness simply because the witness was a police officer. On this record,

we hold that it was not an abuse of discretion for the trial court to conclude that the three police

officers were not incapable or unfit to serve on the jury and to deny Farrell’s challenge for cause.

We overrule his sole issue on appeal and affirm the trial court’s judgment of conviction.




                                               __________________________________________

                                               Mack Kidd, Justice

Before Justices Kidd, B. A. Smith and Puryear

Affirmed

Filed: March 11, 2004

Do Not Publish




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