









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-0074-06


SAMUEL ALLEN WEBB, Appellant

v.


THE STATE OF TEXAS




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRD COURT OF APPEALS

SAN SABA COUNTY



 Meyers, J., delivered the opinion of the Court, in which Keller, P.J., and
Price, Womack, Keasler, Hervey, and Cochran, JJ., joined.  Holcomb, J., filed a
dissenting opinion, in which Johnson, J., joined.  

O P I N I O N


	Appellant was convicted of sexual assault of a child.  Prior to sentencing, he filed
motions for mistrial and new trial, which the trial court denied.  Appellant appealed, and the
court of appeals affirmed the conviction.  Webb v. State, 2005 Tex. App. LEXIS 6231 (Tex.
App. 2005).  We granted review to determine whether the court of appeals erred in holding
that the trial court did not abuse its discretion by denying Appellant's motions for mistrial
and new trial (1) following the discovery that a juror had served on the grand jury that
indicted Appellant and (2) because of the State's failure to inform the defense of the
possibility that the complaining witness would file a civil suit against Appellant.  We agree
with the court of appeals that it was not an abuse of discretion for the trial court to deny the
motions for mistrial and new trial. 
FACTS
	Appellant was the campus director of a state-licensed residential facility for
emotionally troubled children.  The complainant was a resident of the facility.  Although
Appellant denied that he had engaged in sexual activity with the complainant, he was
indicted by the grand jury on November 1, 2001.  His trial began almost two years later, on
August 25, 2003.  During voir dire, defense counsel asked the jury panel if any of the panel
members had "heard anyone discuss this case or someone say they thought they knew what
the facts of the case might be?"  None of the prospective jurors responded.  After the jury
returned a guilty verdict, but before the sentence was assessed, one of the jurors revealed
that she had also served on the grand jury that indicted Appellant.  Appellant filed a motion
for mistrial and a motion for new trial based in part on the juror's service on both the grand
jury and the trial jury. 
	At a hearing on the motions, the juror testified that all she remembered from the
grand jury was Appellant's name and the charges that were filed.  She stated that she did not
remember if any testimony or written documents were presented to the grand jury.  She
also did not remember the panel being asked during voir dire whether any of them had ever
heard the facts of the case discussed.  She stated that she did not know that she could not sit
on both the grand jury and the trial jury, and she had not mentioned her service on the grand
jury to any of the other jurors during deliberations.
	Appellant's motion for mistrial and motion for new trial also alleged that the
prosecutor failed to inform him that the complainant might file a civil suit against him.  At
the hearing on the motions, the prosecutor testified that, prior to the trial she received a
phone call from the attorney who was representing the complainant.  The attorney
mentioned the possibility of filing a suit against Appellant, but the prosecutor asked that the
suit not be filed because it would interfere with the criminal trial.  Accordingly,
complainant's attorney said he would wait to file the civil suit until after Appellant's trial. 
	The trial court denied the motions for mistrial, finding that although the State had
knowledge which probably should have been disclosed to the defense out of an abundance
of caution, there was no harm in not informing the defendant of the potential that a suit
would be filed.  Additionally, the court found that the juror who served on both the grand
jury and the trial jury had no actual facts about the case actively in her mind and no harm
could have come from her service on both juries.
COURT OF APPEALS
	The trial court's decisions in denying the motions for new trial and mistrial were
reviewed for abuse of discretion.  In a memorandum opinion, the court of appeals overruled
Appellant's grounds for review and affirmed the judgment of the trial court.  	Addressing
the prior grand jury service by a juror, the court of appeals held that, because Appellant
failed to diligently press the statutory inquiries as to the grounds for challenge, he gave up
the right to complain that the juror was disqualified.  And Appellant did not show that the
juror was biased or prejudiced.  Webb v. State, 2005 Tex. App. LEXIS 6231 at *17-19.
	The court of appeals also determined that there was no evidence indicating that the
State knew that a lawsuit was going to be filed by the complainant, thus the prosecutor did
not deliberately withhold impeachment evidence.  And, due to abundant additional
impeachment evidence, the State's failure to inform the defense that the complainant was
considering filing a civil suit did not preclude Appellant from cross-examining and
impeaching the complaining witness.  Id. at *25.
ANALYSIS
	An appellate court reviews a trial court's ruling on a motion for mistrial and motion
for new trial using an abuse-of-discretion standard of review.  We view the evidence in the
light most favorable to the trial court's ruling and uphold the trial court's ruling if it was
within the zone of reasonable disagreement.  Wead v. State, 129 S.W.3d 126, 129 (Tex.
Crim. App. 2004).  We do not substitute our judgment for that of the trial court, but rather
we decide whether the trial court's decision was arbitrary or unreasonable.  Thus, a trial
court abuses its discretion in denying a motion for new trial only when no reasonable view
of the record could support the trial court's ruling.  Charles v. State, 146 S.W.3d 204, 208
(Tex. Crim. App. 2004).
A.  PRIOR GRAND JURY SERVICE BY A JUROR
	Appellant argues that the juror's failure to disclose the fact that she served on the
grand jury that indicted him denied him his right to a fair and impartial jury.  He contends
that because the juror did not respond to the general questions he asked the panel regarding
knowledge of the case, he did not need to ask more specific questions to  preserve his right
to challenge the juror.  He suggests that the court of appeals' conclusion that he did not ask
sufficient questions is incorrect due to the court's reliance on Self v. State, 47 S.W. 26
(Tex. Crim. App. 1898), which he argues is misplaced because there were other factors in
Self that made the juror's service harmless. 
	Code of Criminal Procedure Article 35.16(a)(7) says that it is a ground for a
challenge for cause if a panelist served on the grand jury which returned the indictment. 
However, it is not an absolute disqualification.  All grounds for challenge for cause may be
forfeited.  See Article 35.16(a); Article 44.46.  Therefore, the challenge for cause is
forfeited if not made. (1)  Failure to question the jurors on that subject constitutes a forfeiture
of the right to complain thereafter.  Neither party specifically asked the panel if they had
previously served on the grand jury that indicted Appellant.  If this fact had been determined
and either party had challenged the juror due to her prior service on the grand jury that
indicted Appellant, she certainly should have been excused.  However, neither party
challenged this venirewoman.  
	In Mitchell v. State, 116 Tex. Crim. 65 (Tex. Crim. App. 1930), one of the
prospective jurors stated during voir dire that he thought he had been on the grand jury that
indicted the appellant.  Appellant challenged the venireman, but the court overruled the
challenge because the venireman's name was not on the list of grand jurors.  The court later
determined that the venireman had served on the grand jury and thus the challenge for cause
should have been granted.  We stated that the appellant's counsel was diligent in discovering
the cause upon which he based his challenge, he followed the procedure set forth in the
statute, and did everything within his power to prevent the venireman from serving on the
jury.  Id. at 66.  We also stated that a different question would be presented had the
appellant failed to diligently press the statutory inquiries as to the ground for challenge,
because ordinarily, in the absence of any fraudulent purpose upon the part of the juror, or
any injury to the defendant, the failure to question the venire regarding service on the grand
jury that returned the indictment constitutes a forfeiture of the right to thereafter complain. 
Id. at 67.  Therefore, it is not required that a juror who served on the grand jury be
discharged.  Prior service on the grand jury raises a question of implied bias, which may be
challenged or forfeited.  Id.  In Mitchell, the defense timely and properly raised the
question of implied bias of the juror arising from service on the grand jury that returned the
indictment; he did not forfeit the question, but exercised his statutory right by challenging
the venireman.  Id.  In contrast, Appellant did not ask  specific enough questions to
determine whether anyone on the panel had served on the grand jury that indicted him and
he did not challenge the venirewoman.  Therefore, he forfeited the right to complain that
the juror should have been excused.  
	Appellant argues that the better view is that when there is no response to the general
question about familiarity about the case, then there is no need to ask more specific
questions in order to preserve the error.  We disagree.  It is incumbent upon counsel to
specifically ask questions which will determine whether they have a right to challenge the
veniremember.  The jury panel does not know the statutory challenges for cause and thus
the prospective jurors likely do not know what the parties are trying to determine during
voir dire.  It is counsel's responsibility to ask questions specific enough to elicit the
answers they require.  
	This is the issue we dealt with in Self v. State.  We stated in Self that a juror who
served on the grand jury is not necessarily disqualified as a juror, but, as provided by
statute, it is a cause for challenge, of which a defendant may or may not avail himself.  47
S.W at 459.  Similar to Appellant, the appellant in Self insisted that he used due diligence to
discover the prior service during voir dire by asking the prospective juror if he had formed
an opinion in the case.  Since the juror replied that he had not, the appellant did not inquire
any further, because, based on this answer, he assumed that he did not sit on the grand jury. 
We stated that the question presented was one of diligence in discovering the cause of
challenge and determined that if the appellant failed in the exercise of this diligence, then
he could not complain that the juror had not been excused.  Id. 
	The statute makes sitting on a grand jury a cause for challenge due to the fear that a
person who served on the grand jury which returned the indictment may have formed an
opinion in the case that was adverse to the appellant.  But this presumption does not
eliminate the necessity that appellant ask during voir dire all of the relevant statutory
questions to determine whether a juror may be disqualified.  A juror might truthfully answer
that he had no present recollection of having formed an opinion in the case even though he
served on the grand jury that returned the indictment.  However, if he had been directly
asked whether he served on the grand jury, he might then remember that he had.  In Self,
questioning the juror regarding whether he had formed an opinion in the case did not make
him recall that he had served on the grand jury which returned the indictment.  Therefore, it
was not enough for the appellant to ask general questions regarding whether he had formed
an opinion in the case; he should have also specifically covered the other grounds listed in
the statute before he could be held to have used due diligence in determining the applicable
challenges for cause.  Id. at 459-60.
	As we said in Mitchell, the fact that a juror served on both the grand jury and the trial
jury does not necessarily mean that the defendant did not receive a fair and impartial jury. 
The reasoning behind this ground for challenge for cause is that the grand juror may have
seen evidence that was inadmissable at trial and may have formed a bias against the
defendant prior to the beginning of the trial.  However, in this case, the trial judge
questioned the juror regarding what evidence she remembered from the grand jury and
determined that she did not even remember if any evidence was presented.
	The judge heard testimony from the juror and determined that she did not remember
any facts or evidence that may have been presented to the grand jury and she was not biased
against Appellant.  The trial judge is the one who heard this testimony, and he chose to
believe it.  His ruling was not arbitrary or unreasonable and was not outside the zone of
reasonable disagreement.  There is no indication that the juror's prior service on the grand
jury deprived Appellant of a fair and impartial jury.  Therefore, the court of appeals
properly upheld the decision of the trial court.
B.  FAILURE TO DISCLOSE THE POSSIBILITY OF CIVIL SUIT
	Appellant argues that the State suppressed material evidence, which violated his Due
Process rights.  See Brady v. Maryland, 373 U.S. 83 (1963).  He states that the evidence
could have been used to impeach the credibility of the complainant, and without it he was
prevented from effective cross-examination of the witness.  According to Appellant, the
fact that the complainant hired an attorney and was considering filing a civil suit against him
showed that she had a financial motive for claiming that Appellant sexually assaulted her,
and he would have presented this motive to the jury.  
	The State points out that Appellant was not prevented from questioning the
complainant regarding her motive for claiming that Appellant sexually assaulted her. 
Appellant questioned the complainant regarding her conflicting statements, her background
and treatment history, and her relationships.  He could have further inquired into her motive
and could have asked her whether she was considering filing a civil suit against Appellant. 
The possibility that a civil suit will be filed after a criminal trial should not be news to any
defense attorney.
	While the fact that a complainant has filed a civil suit against the defendant in a
criminal trial is a proper subject of cross-examination, this does not mean that the
prosecutor's awareness of the possibility that a suit will be filed is necessarily material
evidence.  Materiality depends on the circumstances of the particular case and the evidence
as a whole.  In Hampton v. State, we stated that:
			To find reversible error under Brady, a defendant must show that:
1)  the State failed to disclose evidence, regardless of the
prosecution's good or bad faith;
		2) the withheld evidence is favorable to him;
3) the evidence is material, that is, there is a reasonable probability
that had the evidence been disclosed, the outcome of the trial would
have been different.
	Under Brady, the defendant bears the burden of showing that, in light of all
the evidence, it is reasonably probable that the outcome of the trial would
have been different had the prosecutor made a timely disclosure.  The mere
possibility that an item of undisclosed information might have helped the
defense, or might have affected the outcome of the trial, does not establish
materiality in the constitutional sense.
86 S.W.3d 603, 612 (Tex. Crim. App. 2002) (citations omitted).
	The cases cited by Appellant are not on point.  In Cook v. State, 940 S.W.2d 623
(Tex. Crim. App. 1996), the district attorney's office had engaged in egregious
prosecutorial misconduct by withholding the exculpatory evidence that someone other than
the defendant had made repeated death threats against the victim.  In Ex Parte Mitchell, 853
S.W.2d 1 (Tex. Crim. App. 1993), the evidence was that law enforcement officials may
have seen the victim alive after the time it was claimed that the defendant shot the victim. 
We held in both of those cases that the evidence withheld by the State was material
exculpatory evidence.  In contrast, considering all the evidence presented, the possibility
that a civil suit would be filed after this criminal trial was not material evidence. 
	The court of appeals considered all of the evidence in the light most favorable to the
trial court's determination and properly determined that Appellant did not show that it is
reasonably probable that the outcome of the trial would have been different had the
prosecutor disclosed this information.  Webb v. State, 2005 Tex. App. LEXIS 6231 at *25. 
As indicated by the court of appeals, Appellant offered ample impeachment evidence
against this complaining witness for the jury to consider.  Id.  In light of all the evidence
presented against Appellant and the abundant impeachment evidence Appellant offered
against the complainant, the additional evidence that the complainant was considering filing
a civil suit was not material under Brady.  The trial judge did not abuse his discretion in
denying the motions for mistrial and new trial on this basis.
CONCLUSION
	The court of appeals properly determined that the trial court did not abuse its
discretion in failing to grant Appellant's motions for mistrial and new trial.  By failing to
challenge the venirewoman, Appellant forfeited the right to complain that the juror who
served on both the grand jury and the trial jury had not been excused.  The trial court did not
err in determining that there is no indication that the juror's prior service on the grand jury
deprived Appellant of a fair and impartial jury.  Finally, Appellant did not show that, in light
of all the evidence, it is reasonably probable that the outcome of the trial would have been
different if the prosecutor had informed him of the possibility that the complainant would
file a civil suit against him.  The judgment of the court of appeals is affirmed.

								Meyers, J.
Delivered: June 13, 2007
Publish
1. While the court of appeals opinion, as well as many of the past cases cited say that a challenge
for cause is waived if not used, it is more accurate to say that the right is forfeited by failure to request
the challenge.  See Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993).  A challenge for cause
due to prior grand jury service is not in the category of rights that must be expressly waived.

