                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 02-10-00040-CR


TODD ALLEN BANCROFT                                                      APPELLANT

                                          V.

THE STATE OF TEXAS                                                             STATE


                                      ------------

           FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

                                      ------------

                          MEMORANDUM OPINION1

                                      ------------

      In one issue, appellant Todd Allen Bancroft appeals his conviction for

assault causing bodily injury to a family or household member.2 We will affirm.

      The facts of this case are not in dispute. The issue in this case relates to

the trial court’s denial of Bancroft’s request for a recess during voir dire. After the



      1
       See Tex. R. App. P. 47.4.
      2
          See Tex. Penal Code Ann. § 22.01(b)(2) (Vernon Supp. 2010).
State completed its voir dire, the following exchange between Bancroft’s attorney

and the trial court took place:

      [Defense Counsel]: Judge, I’ve spoken with the prosecutor and
      certainly I don’t think this was malicious on anybody’s parts, certainly
      not the State’s part. But she has told me and I heard during the
      Court’s voir dire that the jury questionnaires were made available
      yesterday evening. The Defense was never made aware that the
      questionnaires were available, so we didn’t know that they were
      available.

      The State had all night to -- had the evening to review the
      questionnaires prior to the voir dire examination of the jury and the
      Defense [did] not. This, obviously, puts the State at a significant
      advantage.

      Had we been notified that we -- that the questionnaires were
      available, certainly we would have availed ourselves of the
      opportunity to review those prior to voir dire examination of the jury.
      We would ask that the Court -- the place that we’re at right now is
      both the Court and the State have conducted their voir dire
      examination of the jury. Prior to our voir dire examination of the jury,
      we would ask for a recess until 2:00 o’clock so that we can
      sufficiently review and examine the questionnaires.

      We first got access to the questionnaires when I arrived in court this
      morning at just after 8:30. Again, I’m not saying this was a malicious
      act on anybody’s part, but we were not aware that they were
      available, did not have the opportunity to review those
      questionnaires as the State did. We believe that this deprives
      [Bancroft] of a fair trial under the state and federal constitutions as it
      puts the State at a significant advantage. And we would ask for
      recess until 2:00 o’clock to review the questionnaires.

      [The Court]: Well, you knew that we would get a jury out of
      Monday’s panel to come back Tuesday morning.

      [Defense Counsel]: I was not aware of that.

      [The Court]: Counsel, we had discussions of that weeks before
      talking about when we would try this case.


                                          2
[Defense Counsel]: We had talked about -- my recollection of it,
Judge, is that -- that we would arraign [Bancroft] last week on
Tuesday and that we were then recessed until this morning for jury
selection. There was no -- I don’t recall any discussion of when --
what pool the panel would be pulled out of.

[The Court]: Did we not have discussions yesterday regarding
[Bancroft’s] mental condition that I said, okay, we’re going to have to
cancel the jury if he’s incompetent?

[Defense Counsel]: Well, we did have discussions about his --

[The Court]: Did you think at 9:00 o’clock this morning that I was
going to get a panel from this morning and have them come up?

[Defense Counsel]: Yes.

[The Court]: And so you’re thinking that at 9:00 o’clock this morning
when the jurors report to the jury room at 8:00 o’clock, they would
have had -- they would have had -- filled out their questionnaires and
I would have made copies and would have distributed those to you
blind?

[Defense Counsel]: Well, in any event, Judge --

[The Court]: No, answer my question.

[Defense Counsel]: Yes.

[The Court]: Okay. How many cases have you tried?

[Defense Counsel]: I’ve tried -- I don’t know the exact number.

[The Court]: Have you ever had a felony court do that to you?

[Defense Counsel]: I’ve had felony courts where we pulled jury
panels out of that day’s jury pool.

[The Court]: And in that situation the judge has always given you
the opportunity to review the questionnaires before they seat the
panel.

[Defense Counsel]: Yes, Judge.

                                  3
      [The Court]: So you came to court this morning thinking, here we
      go, I mean, they’re here at 9:00 o’clock, we’re starting and I don’t get
      the questionnaires?

      [Defense Counsel]: Well, I received the questionnaires when I got
      here this morning and I reviewed them to the --

      [The Court]: Well, what I’m trying to say is, those questionnaires
      were made available yesterday, and that’s all I’m going to say. They
      were available yesterday. Your motion is denied.

No further objections were raised by either defense counsel or the State during

voir dire. A jury was empanelled and ultimately found Bancroft guilty of assault

causing bodily injury to a family or household member. The trial court sentenced

Bancroft to twenty-five years’ incarceration. This appeal followed.

      In his sole issue, Bancroft argues that he was denied his rights to a fair trial

under both the state and federal constitutions and his right to effective assistance

of counsel. See U.S. Const. amend. V, VI, XIV; Tex. Const. art. I, §§ 10, 19.

Bancroft’s arguments are predicated on the notion that because the State

reviewed the written juror questionnaires the night before trial, he should have

been given ―a fair amount of time to review the [questionnaires] before

conducting voir dire.‖   This court interprets Bancroft’s issue as having three

distinct parts. First, it seems that Bancroft is arguing that, in violation of his due

process rights to a fair trial, the procedure employed by the trial court allowed the

State more time than he to examine the voir dire questionnaires.             Second,

Bancroft argues that the trial court erred by not allowing him more time to

examine the questionnaires the morning of voir dire. Finally, Bancroft argues

                                          4
that his not being allowed to examine the questionnaires further before voir dire

was tantamount to ineffective assistance of counsel. We disagree.

      A criminal defendant has a constitutional right to trial by an impartial jury.

To be sure, voir dire plays a critical function in assuring the criminal defendant

that his constitutional right to an impartial jury will be honored. Morgan v. Illinois,

504 U.S. 719, 729, 112 S. Ct. 2222, 2230 (1992). ―[P]art of the guarantee of a

defendant’s right to an impartial jury is an adequate voir dire to identify

unqualified jurors.‖   Id.   Thus, counsel must be diligent in eliciting pertinent

information from prospective jurors during voir dire in an effort to uncover

potential prejudice or bias, and counsel has an obligation to ask questions

calculated to bring out information that might indicate a juror’s inability to be

impartial. Brasher v. State, 139 S.W.3d 369, 373 (Tex. App.—San Antonio 2004,

pet. ref’d).    To this end, defense counsel should not rely on written

questionnaires to supply any information that counsel deems material.             See

Gonzales v. State, 3 S.W.3d 915, 917 (Tex. Crim. App. 1999) (―[W]ritten

questions are by nature vulnerable to misinterpretation.‖).

      Furthermore, a trial court has broad discretion over the process of

selecting a jury. Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002);

Allridge v. State, 762 S.W.2d 146, 167 (Tex. Crim. App. 1988), cert. denied, 489

U.S. 1040 (1989). Without this discretion, voir dire could go on forever without

reasonable limits.     Faulder v. State, 745 S.W.2d 327, 334 (Tex. Crim. App.

1987), cert. denied, 519 U.S. 995 (1996). We review a trial court’s denial of a

                                          5
motion for continuance for an abuse of discretion. Janecka v. State, 937 S.W.2d

456, 468 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 525 (1997). When an

appellant contends that the denial of continuance rendered him unable to

adequately prepare for trial, appellant must establish specific prejudice to his

cause arising from the court’s ruling. Heiselbetz v. State, 906 S.W.2d 500, 511–

12 (Tex. Crim. App. 1995).       The bare assertion that counsel did not have

adequate time to conduct pre-trial activities, absent a showing of specific and

serious harm to the defense, is insufficient to establish abuse of discretion. Id.

       We first address Bancroft’s argument that his rights to a fair trial were

violated when the State was allegedly given more time to review the

questionnaires. There is simply no evidence in the record, other than Bancroft’s

bare assertion, that the trial court allowed the State to review questionnaires the

night before trial but not Bancroft. Bancroft made no offer of proof or otherwise

put on any evidence that his not picking up and reviewing the questionnaires the

night before, as the State did, was anything other than inadvertence on his part.

We hold that the record does not support that the State had any unfair advantage

or that the trial court’s process allowed an unfair advantage to the State. See

Burruss v. State, 20 S.W.3d 179, 186 (Tex. App.—Texarkana 2000, pet. ref’d)

(reasoning that there was no merit to appellant’s contention that trial court’s

process for jury voir dire violated defendant’s constitutional right to a fair and

impartial trial).



                                          6
      Furthermore, there is no showing in the record, nor does Bancroft allege,

how counsel would have conducted voir dire any differently. There is no showing

that counsel was denied the ability to intelligently and effectively exercise his

peremptory challenges. Also, the duty was defense counsel’s alone to question

jurors adequately and not rely on the written questionnaires. See Gonzales, 3

S.W.3d 915, 917. In short, Bancroft has failed to establish any specific prejudice

to his case arising from the court’s denial of his request for a continuance. See

Heiselbetz, 906 S.W.2d at 511–12.

      Finally, Bancroft also couches his argument in terms of an ineffective

assistance of counsel claim. See Strickland v. Washington, 466 U.S. 668, 686,

104 S. Ct. 2052, 2064 (1984). To the extent that Bancroft brings an ineffective

assistance of counsel claim, we conclude that this argument fails also because

Bancroft has failed to demonstrate prejudice to his case by the trial court’s denial

of his request for additional time.3 See Conrad v. State, 77 S.W.3d 424, 426–27

(Tex. App.—Fort Worth 2002, pet. ref’d) (holding that appellant failed to show

prejudice; thus, his claim of ineffective assistance of counsel failed under

Strickland). We hold that the trial court did not err by denying Bancroft’s request

for additional time to review the juror questionnaires and that Bancroft has failed

to demonstrate that his defense was prejudiced by the trial court’s ruling. Having


      3
        Bancroft concedes that the Strickland test was not met and that ―[t]rial
[c]ounsel was certainly not ineffective.‖ Bancroft seems to argue that the trial
court’s ruling prevented him from having adequate time to prepare for trial.

                                         7
rejected all of Bancroft’s arguments, we overrule his sole issue and affirm the trial

court’s judgment.



                                                    BILL MEIER
                                                    JUSTICE

PANEL: GARDNER, WALKER, and MEIER, JJ.

WALKER, J. filed a dissenting opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: January 20, 2011




                                         8
                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00040-CR


TODD ALLEN BANCROFT                                                 APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


                                     ----------

          FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

                                     ----------

                DISSENTING MEMORANDUM OPINION4
                                     ----------

      The majority holds that ―the record does not support that the State had any

unfair advantage or that the trial court’s process allowed an unfair advantage to

the State.‖ Because I cannot agree, I respectfully dissent.

      The purposes of voir dire are (1) to develop rapport between the officers of

the court and the jurors, (2) to expose juror bias or interest warranting a

challenge for cause, and (3) to elicit information necessary to intelligently use

      4
       See Tex. R. App. P. 47.4.
peremptory challenges. Dhillon v. State, 138 S.W.3d 583, 587–88 (Tex. App.––

Houston [14th Dist.] 2004, pet. stricken); S.D.G. v. State, 936 S.W.2d 371, 380

(Tex. App.––Houston [14th Dist.] 1996, writ denied). A trial court may impose

reasonable restrictions on voir dire examination, including reasonable limits on

the amount of time each party can question the jury panel. Caldwell v. State, 818

S.W.2d 790, 793 (Tex. Crim. App. 1991), cert. denied, 503 U.S. 990 (1992),

overruled on other grounds by Castillo v. State, 913 S.W.2d 529 (Tex. Crim. App.

1995); Ratliff v. State, 690 S.W.2d 597, 597 (Tex. Crim. App. 1985).              The

discretion of the trial court regarding control of voir dire is not limitless, however;

thus, the benefits achieved by accelerating the often lengthy voir dire process

―must never be attained at the risk of denying to a party on trial a substantial

right.‖ Caldwell, 818 S.W.2d at 793; Smith v. State, 703 S.W.2d 641, 645 (Tex.

Crim. App. 1985). Although time constraints on voir dire are a legitimate concern

of a trial court, the paramount concern in a case must be the appellant’s freedom

to intelligently exercise his peremptory challenges. Smith, 703 S.W.2d at 645.

        The Sixth Amendment guarantees the right to a trial before an impartial

jury.   Franklin v. State, 138 S.W.3d 351, 354 (Tex. Crim. App. 2004).            The

constitutional guarantee of the right to an impartial jury includes adequate voir

dire to identify unqualified jurors.     Id.   Essential to the Sixth Amendment

guarantee of trial before an impartial jury is the right to question venire members

in order to intelligently exercise peremptory challenges and challenges for cause.

Id.


                                          2
      Here, the trial court and the State concluded their portions of voir dire at

10:40 a.m. on January 26, 2010. The trial court gave the jury a twenty-minute

break, instructing them to return at 11:00 a.m. Appellant Todd Allen Bancroft’s

counsel then informed the trial court that he had not been notified that the juror

questionnaires had been made available the night before, that the State had

obtained its copies of the questionnaires the night before, and that he had been

given his copies only that morning when he entered the courtroom; he requested

a brief recess until 2:00 p.m. to review the juror questionnaires. 5   Bancroft’s

counsel specifically informed the trial court that he had not had an adequate time

to review the questionnaires because he did not know and was not informed that

they were available the previous night, that the State had all evening to review

them, that he was placed at a disadvantage, and that ―this deprives [Bancroft] of

a fair trial under the state and federal constitutions as it puts the State at a

significant advantage.‖ The trial court denied Bancroft’s request for a three-hour

recess or for a two-hour recess if an hour-long lunch break was excluded. The

case took less than a day to try; the jury returned at 9:00 a.m. on January 27,

2010 for closing arguments and returned a verdict at 10:40 a.m. that morning.

      Because the State obtained the juror questionnaires on January 25, 2010

and because Bancroft was not told or advised that he also could obtain them on

January 25, 2010, the State possessed and had time to assimilate information

      5
        The entire dialogue between Bancroft’s counsel and the trial court is set
forth in the majority’s opinion, so I do not repeat it here.


                                        3
about the jury panel that Bancroft did not.         Bancroft did not possess the

information until 8:30 a.m. on January 26, 2010. So the State had the juror

information at least fifteen and a half hours before Bancroft did (assuming the

State picked up the juror questionnaires at the latest possible moment, at 5 p.m.

on January 25).6      The State’s possession of juror information that was not

possessed by Bancroft and the trial court’s denial of Bancroft’s request for a brief

recess in voir dire in order to review the questionnaires constitute a due process

violation; the State possessed an unfair advantage in voir dire.         See, e.g.,

Grijalva v. State, 614 S.W.2d 420, 424 (Tex. Crim. App. 1980) (holding, in death

penalty case, that State was given unfair advantage in the jury selection process

when the trial court allowed it to exercise peremptory strikes after entire panel

was questioned); Giron v. State, 19 S.W.3d 572, 576 (Tex. App.—Beaumont

2000, pet. ref’d) (―In an adversarial system due process requires at least a

reasonably level playing field at trial.‖).

         I would hold that Bancroft was denied due process by not being afforded

the same opportunity to review the jury questionnaires as the State. Because I

am unable to determine beyond a reasonable doubt that this constitutional error

did not contribute to Bancroft’s conviction or punishment, I respectfully dissent.

See Tex. R. App. P. 44.2(a); see also Williams v. State, 958 S.W.2d 186, 194

(Tex. Crim. App. 1997) (finding constitutional error was harmful when error

         6
         The District Attorney’s office is located in the same building as the trial
court.


                                              4
caused State to be more prepared for cross-examination than it would have

without the error).


                                            SUE WALKER
                                            JUSTICE

DO NOT PUBLISH
Tex. R. App. P. 47.2(b

DELIVERED: January 20, 2011




                                   5
