                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-09-00260-CR

CHRISTOPHER LEE PHILLIPS,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee


                           From the 85th District Court
                               Brazos County, Texas
                         Trial Court No. 08-01833-CRF-85


                          MEMORANDUM OPINION

      Christopher Lee Phillips was convicted of Injury to a Child and sentenced to 30

years in prison. See TEX. PENAL CODE ANN. §22.04(c) (West Supp. 2011). Because the

trial court did not err in denying Phillips’ challenges for cause and because we will not

change the scope of review for sufficiency of the evidence as established by the Court of

Criminal Appeals, the trial court’s judgment is affirmed.

                                CHALLENGES FOR CAUSE

      In his first issue, Phillips contends the trial court erred in denying his challenges

for cause to two jury panelists, Ross Eckhardt and Mark Hartman. Specifically, he
contends that these two panelists were biased against him, in violation of article 35.16,

in that they could never believe a police officer would lie. See TEX. CODE CRIM. PROC.

ANN. art. 35.16(a)(9) (West 2006).

Preservation of Error

        To preserve error for a trial court's erroneous denial of a challenge for cause,

appellant must show that: (1) he asserted a clear and specific challenge for cause; (2) he

used a peremptory challenge on the complained-of venire member; (3) his peremptory

challenges were exhausted; (4) his request for additional strikes was denied; and (5) an

objectionable juror sat on the jury. Davis v. State, 329 S.W.3d 798, 807 (Tex. Crim. App.

2010); Green v. State, 934 S.W.2d 92, 105 (Tex. Crim. App. 1996). The State concedes that

Phillips properly preserved error with respect to each challenged panelist.

Law

        Article 35.16(a)(9) of the Code of Criminal Procedure requires that a prospective

juror be dismissed for cause when challenged if the juror “has a bias or prejudice in

favor of or against the defendant." TEX. CODE CRIM. PROC. ANN. art. 35.16(a)(9) (West

2006); Anderson v. State, 633 S.W.2d 851, 853 (Tex. Crim. App. 1982).          Bias is an

inclination toward one side of an issue rather than to the other which leads to the

natural inference that a juror will not act with impartiality. Anderson, 633 S.W.2d at 853

(citing Compton v. Henrie, 364 S.W.2d 179 (Tex. 1963)).

        When bias or prejudice are not established as a matter of law, the trial court has

discretion to determine whether bias or prejudice actually exists to such a degree that

the prospective juror is disqualified and should be excused from jury service. Id. at 853-

Phillips v. State                                                                   Page 2
854. We look at the entire record when reviewing a trial court's decision to deny a

challenge for cause to determine if there is sufficient evidence to support the ruling.

Davis, 329 S.W.3d at 807; 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 venire member's

ability to carry out the juror's oath and judicial instructions in accordance with the law.

Davis, 329 S.W.3d at 807; Gardner v. State, 306 S.W.3d 274, 295 (Tex. Crim. App. 2009).

Before venire members may be excused for cause, the law must be explained to them,

and they must be asked whether they can follow that law, regardless of their personal

views. Id. The proponent of a challenge for cause has the burden of establishing that

the challenge is proper. Id. The proponent does not meet this burden until he has

shown that the venire member understood the requirements of the law and could not

overcome his or her prejudice well enough to follow the law. Id.

        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 venire member's

demeanor and responses. Gardner, 306 S.W.3d at 295-96. 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 venire member's answers are vacillating, unclear, or contradictory, we accord

particular deference to the trial court's decision. Id.

        Phillips contends the panelists were shown to be biased as a matter of law. Bias

exists as a matter of law when a prospective juror admits that he is biased for or against

a defendant. Anderson, 633 S.W.2d at 854. When a prospective juror is shown to be

biased as a matter of law, he must be excused when challenged, even if he states that he

Phillips v. State                                                                    Page 3
can set his bias aside and provide a fair trial. Id. However, it is left to the discretion of

the trial court to first determine whether or not bias exists. Id. Where the juror states he

believes that he can set aside any influences he may have, and the trial court overrules a

challenge for cause, its decision will be reviewed in light of all of the answers the

prospective juror gives. Id.

           Phillips relies on the Court of Criminal Appeals’ opinion in Hernandez to support

his argument that the panelists were biased as a matter of law. Hernandez v. State, 563

S.W.2d 947, 950 (Tex. Crim. App. 1978). In Hernandez, the Court held that a jury panelist

was challengeable for cause under article 35.16(a)(8)1 for having a bias or prejudice in

favor of or against the defendant, if the panelist could not "impartially judge the

credibility of the witnesses." Id. In that case, the panelist stated that she would always

believe police officers who testified at trial. Id. But the Court later explained in Jones v.

State, that

           Our holding in Hernandez, however, must not be interpreted to mean that
           a veniremember is challengeable for cause simply because he would be
           more skeptical of a certain category of witness than of witnesses generally.
           What we meant in Hernandez was that litigants are entitled to jurors who
           will be genuinely open-minded and persuadable, with no extreme or
           absolute positions regarding the credibility of any witness. We could not
           have meant that jurors must be completely impartial and free of any trace
           of skepticism toward any category of witness. Complete impartiality
           cannot be realized as long as human beings are called upon to be jurors.
           No person sitting as a juror can completely remove his own experiences,
           beliefs, and values, however hard he may try.

Jones v. State, 982 S.W.2d 386, 390 (Tex. Crim. App. 1998) (emphasis in original).




1   Now article 35.16(a)(9).

Phillips v. State                                                                         Page 4
Facts

        In this case, Phillips began this line of questioning by asking the panel whether

they would tend to believe an officer over another person, not knowing either one.

When Hartman questioned whether Phillips meant in any case, because he thought that

was significant, Phillips clarified the example by adding to it that neither the officer nor

the other person had spoken yet. Hartman replied that most people would go with the

officer. Many of the panelists agreed. Phillips then changed the scenario and asked the

panelists whether, if in a court of law, they would automatically tend to believe a police

officer over someone else just based on the fact that the person is an officer. After the

State requested a bench conference, Phillips again clarified his scenario. This time, he

asked whether, if an officer sat in a courtroom and another person sat down next to

him, knowing both were going to be questioned, the panelists would tend to believe the

officer automatically by virtue of the fact that he is an officer. One panelist changed his

answer from yes to no, but the others did not. Phillips then asked if anyone had a

family member or close friend who was a law enforcement officer or was, themselves, a

law enforcement officer. Eleven panelists responded affirmatively, including Eckhardt

who has an uncle and a cousin in law enforcement, and Hartman who is a police officer.

None of these 11 panelists thought their relationships with law enforcement officers

would impact their verdict.

        Eckhardt

        On individual questioning the next day, Phillips asked Eckhardt




Phillips v. State                                                                     Page 5
        Do you believe a police office would always tell the truth? And this is not
        after they actually take the stand and you hear about their experience, but
        prior to them even testifying, do you – do you have an assessment or
        belief that a police officer would always tell the truth that’s been called to
        testify?

Eckhardt answered, “If called to testify, yes.” But, upon questioning by the State and

the Court, Eckhardt agreed that he could take an oath to follow the Court’s instructions

regardless of his personal feelings about the instructions, that he would tend to give

more weight to the testimony of a police officer over another witness but could be fair

and decide the case on the merits, that he could follow the instruction that he is the sole

judge of the credibility of the witnesses and the weight to be given their testimony, that

he could observe the courtroom demeanor of all the witnesses and determine who is

telling the truth and who may not be, and if it appeared that a police officer may not be

totally truthful, could make that finding in the verdict.

        Phillips then reiterated that Eckhardt’s previous response had been “if a police

officer testified, prior to them testifying, they’re called to testify, you believe that they

would always tell the truth.” Eckhardt replied, “Well, under oath.” Phillips affirmed

that the officer would be under oath. Then Eckhardt was asked, “You believe that prior

to them testifying that they would always tell the truth?” Eckhardt replied, “In my

heart I do, yes.” The Court then clarified with Eckhardt that he understood that police

officers are human and that there may be certain underlying facts that would cause

them to be tempted not to tell the truth. When asked if he could “call the balls and

strikes,” Eckhardt replied that “every situation is different and I understand that…I can

make that decision.”

Phillips v. State                                                                        Page 6
         Eckhardt’s answers were not extreme or absolute regarding the credibility of

police officers. Further, the law was explained to him and he was asked whether he

could follow that law, regardless. Phillips did not show Eckhardt could not overcome

his bias, if any, well enough to follow the law. Thus, the trial court did not err in

overruling Phillips’ challenge for cause.

         Hartman

         When Hartman was subjected to individual questioning by Phillips, he was

asked,

         Prior to a police officer testifying, obviously when they testify you can
         assess their credibility, their experience, all that kind of stuff, but I’m just
         saying right now as you stand here prior to the police officer testifying, do
         you believe that if a police officer is called to testify that that police officer
         will always tell the truth?

Hartman replied that he believed it was their job to tell the truth. When asked if that

meant “yes,” Hartman responded affirmatively. The State then explained that the judge

would give him instructions that permits the jurors to give more weight to the

testimony of a police officer but requires that Hartman be fair and decide the case on

the merits. Hartman agreed to following the law as a part of his job as a juror. He also

agreed that he would evaluate everyone on the same plane and on what he would hear

about their training and experience before making a decision if he was given that

instruction.

         Hartman was questioned further by Phillips about whether he believed other

witnesses prior to testifying would always tell the truth. Hartman replied that he

believed most people were honest and would give them the benefit of the doubt. He

Phillips v. State                                                                             Page 7
did not believe, however, that all witnesses would always tell the truth before giving an

oath; but he again stated that he normally gives them the benefit of the doubt. Hartman

then affirmed in response to a question by the Court that he would judge the credibility

of the witnesses “always” whether they were laymen, police officers, or others and

would apply the law to the facts.

        Again, Hartman’s answers were not extreme or absolute regarding the credibility

of police officers. Further, the law was explained to him and he was asked whether he

could follow that law, regardless. Phillips did not show Hartman could not overcome

his bias, if any, well enough to follow the law. Thus, the trial court did not err in

overruling Phillips’ challenge for cause.

Conclusion

        Because the trial court did not err in overruling Phillips’ challenges for cause, his

first issue is overruled.

                               SUFFICIENCY OF THE EVIDENCE

        In Phillips’ second issue, he contends the evidence is insufficient to support the

verdict because, he argues, two physicians who testified for the State were not qualified

to testify regarding the mechanisms causing the injuries to the child; therefore,

disregarding the testimony of these two physicians, the evidence is insufficient to

support causation. No objection was made to the qualifications of the physicians.

        Phillips invites this Court to change the scope of review of a sufficiency of the

evidence complaint in a criminal proceeding by using the civil standard expressed by

the Texas Supreme Court in Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706

Phillips v. State                                                                      Page 8
(Tex. 1997). The Court of Criminal appeals has consistently held that in conducting a

sufficiency review the reviewing court is to review all the evidence, even the evidence

that was improperly submitted. See Johnson v. State, 967 S.W.2d 410, 412 (Tex. Crim.

App. 1998); Thomas v. State, 753 S.W.2d 688, 695 (Tex. Crim. App. 1988). See also Russeau

v. State, 171 S.W.3d 871, 879 (Tex. Crim. App. 2005); Dewberry v. State, 4 S.W.3d 735, 740

(Tex. Crim. App. 1999). This is admittedly different than the scope of review in a civil

proceeding wherein the reviewing court does not consider improperly submitted

evidence when reviewing sufficiency of the evidence issues. See Havner, 953 S.W.2d at

711. As an intermediate appellate court, it is not our role to modify the scope of what

we review in conducting our review of the evidence under the proper standard of

review. Accordingly, we must decline Phillips’ invitation to change the scope of review

as established by the Court of Criminal Appeals. Because we must review all the

evidence and because Phillips does not contend the evidence is insufficient with the

inclusion of the physicians’ testimony, Phillips’ second issue is overruled.

                                      CONCLUSION

        Having overruled each issue on appeal, we affirm the trial court’s judgment.


                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed May 30, 2012
Do not publish
[CRPM]

Phillips v. State                                                                   Page 9
