                                  COURT OF APPEALS
                               EIGHTH DISTRICT OF TEXAS
                                    EL PASO, TEXAS
 DANNY RICHARD RIVERS, JR.,                      §
                                                                 No. 08-12-00145-CR
                        Appellant,               §
                                                                    Appeal from the
 v.                                              §
                                                                  30th District Court
 THE STATE OF TEXAS,                             §
                                                               of Wichita County, Texas
                        Appellee.                §
                                                                    (TC#51,391-A)
                                                  §

                                          OPINION

       A jury found Appellant Danny Rivers, Jr., guilty of one count of continuous sexual abuse

of a young child, two counts of indecency with a child by contact, one count of indecency with a

child by exposure, and two counts of possession of child pornography.       See TEX. PENAL CODE

ANN. §§ 21.02, 21.11, 43.26 (West 2011).          The jury assessed punishment at thirty years’

imprisonment for the continuous sexual abuse count, three years’ imprisonment for each count of

indecency by contact, and two years’ imprisonment for each count of indecency by exposure and

possession of child pornography.     In a single issue on appeal, Appellant contends the trial court

reversibly erred by denying his motion for new trial “when it was apparent a juror withheld

material information during voir dire.” We affirm.

                                        BACKGROUND

       During jury selection, the jury panel was asked if anyone knew Appellant, Janet Jackson,
Joe Jackson, Danny Rivers, Sr., Elizabeth Rivers, Chris Rivers, Eric Rivers, John Bunch, Vance

Booher, Grace Rivers, Nicole Rivers, Bo Jackson, Meredith Jackson, Carl Booher, Cara Booher,

Megan Brown, Aiden Fernandez, Brandy Rivers, Christi Rivers, Bianca (BiBi) Lopez, Nina

Rivers, Louis Lopez, Tina Lopez, and Justin Caraway.                  Several members of the venire

responded that they knew one or more of the named individuals. The venire members who

responded in the affirmative were spoken to privately during individual voir dire examination.

        After Appellant was convicted by a jury and sentenced in accordance with the jury’s

assessment of punishment, Appellant filed a notice of appeal and a motion for new trial and

motion in arrest of judgment.      In his motion, Appellant asserted he was deprived of his ability

to exercise his peremptory challenges in an intelligent manner because Luke Oechsner, a juror,

did not disclose a “previous relationship with and/or knowledge of the alleged victims…Christi

Rivers (the alleged victims’ mother), and Louis and Tina Lopez (the alleged victims’ maternal

grandparents) despite being…asked whether he knew any of them.”               Appellant attached several

supporting affidavits in support of his motion.

        At the hearing on the motion for new trial and motion in arrest of judgment, Appellant’s

sister-in-law, Tammi Bunch, testified that once the jury was empaneled she had seen one of the

jurors before and that the juror looked familiar.        Bunch explained that she now knew the juror

was named Luke Oechsner.1         After the jury was released at trial, Bunch saw Oechsner return to

the courtroom for the stacking portion of Appellant’s trial. After the sentencing hearing, she

saw Oechsner talking and smoking outside the courthouse with two maintenance men.

        When the Lopez family came out of the courtroom, Bunch observed Oechsner shake

1
  In Tammi’s affidavit, which was attached to Appellant’s motion for new trial, Bunch stated that she had a
suspicion Oechsner knew the Lopez family because she knew of his association with the Express Soccer club in
which the alleged victims played soccer.
                                                     2
hands with Emmanuel Bernal, a friend of the Lopez family, Michael Saenz, a witness in

Appellant’s case, and Louis Lopez, the victims’ grandfather.               Bunch stated the manner in which

the individuals shook hands seemed odd to her.               On cross-examination, Bunch stated she did

not hear what was said in the parking lot.

        Appellant’s maternal aunt, Tammy Fernandez2 testified that she was not present during

jury selection.      At trial, Fernandez did not recognize anyone after the jury entered the

courtroom. After the jury had been dismissed, Fernandez saw a juror, who she now knew to be

Oechsner, at the sentencing hearing.3           After the sentencing hearing, Fernandez saw Oechsner

standing outside talking to two maintenance men.                 She then saw the Lopez family4 exit the

courthouse and approach Oechsner’s location. She observed Manuel and Michael shake hands

with Oechsner.      According to Fernandez, Michael grabbed Oechsner and hugged him.

        John Bunch, Appellant’s sibling, was present during trial, but was not present for jury

selection.    Bunch testified that he noticed Oechsner at trial.              When asked how long he had

known Oechsner, Bunch responded, “I don’t know him, personally.                       I just know who he is.”

Bunch explained that he knew of Oechsner due to Oechsner’s involvement with the Greater

Wichita Falls Soccer Association.

        According to Bunch, Appellant’s stepdaughter and daughter, the victims’ in this case,

played in the soccer association with which Oechsner was involved.                    Bunch stated that it was

very likely that Oechsner “would know” Monica Lopez, Christi Rivers’s sister, because Monica


2
  We note that the reporter’s record reflects Tammy’s last name to be Hernandez while the affidavit attached in
support of Appellant’s motion for new trial which is signed by Tammy lists her last name as Fernandez. We use
Fernandez to identify Tammy in this opinion.
3
  In her affidavit, Fernandez stated that after she saw one of the jurors enter the courtroom during sentencing, she
asked her niece, Tammi Bunch, for the name of the juror. Tammi told her the juror’s name was Luke Oechsner.
4
  She identified Christi Rivers, Tina and Louis Lopez, Michael Saenz, and “Manuel Bartel.” She stated she did not
know Manuel’s last name.
                                                         3
played soccer with Wichita Falls Express Soccer, a competitive soccer league.                         Bunch stated

that Monica and her friend Abby were at Appellant’s trial. The two girls played Express Soccer

together. Bunch noticed that Oechsner frequently looked at the girls during trial.                       Bunch also

testified that due to Oechsner’s involvement in Express Soccer, Oechsner would probably know

Christi Rivers, Tina Lopez, and Louis Lopez.

          According to Bunch, Bunch had previously seen Oechsner and Louis Lopez speak at the

soccer fields.5 Bunch testified that Michael Saenz coached and played soccer in the adult

league.     Michael, Bunch, and Oechsner also played against each other in the adult league.

          On cross-examination, Bunch testified that there are a lot of people involved in the

Greater Wichita Falls Soccer Association and Wichita Falls Express.                     He agreed that there are

people like Oechsner that he might know on sight, but did not know personally. According to

Bunch, it had been a few years since Oechsner had been involved in Wichita Falls Express.

          At the hearing on the motion for new trial, the State offered the sworn affidavit of

Oechsner as evidence which was admitted without objection.                           In his affidavit, Oechsner

asserted he did not know the victims in this case, Christi Rivers, Louis Lopez, or Tina Lopez.

When the defense contacted Oechsner after the trial, he informed the defense that he did not

know the victims or their families.

          The trial court subsequently denied Appellant’s motion and this appeal followed.

                                                  DISCUSSION

                                             Motion for New Trial

          In his sole issue on appeal, Appellant contends the trial court’s denial of his motion for

5
  In his affidavit that was attached to Appellant’s motion for new trial, Bunch stated “I know that I have heard the
grandparents, Louis and Tina talk about the Oeschner [sic] family and even thought that I had seen Louis shake
hands and speak to Luke Oeschner [sic] at the soccer complex as though they knew each other.”
                                                          4
new trial is constitutional error because Oechsner failed to disclose material information during

voir dire.

                                       Standard of Review

        We review a trial court’s ruling on a motion for a new trial for an abuse of discretion.

Riley v. State, 378 S.W.3d 453, 457 (Tex.Crim.App. 2012); Webb v. State, 232 S.W.3d 109, 112

(Tex.Crim.App. 2007); Salazar v. State, 38 S.W.3d 141, 148 (Tex.Crim.App. 2001). We view

the evidence in the light most favorable to the trial court’s ruling and uphold the ruling if it is

within the zone of reasonable disagreement. Webb, 232 S.W.3d at 112.          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.   Id.   Accordingly, 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. Id., citing Charles v. State, 146 S.W.3d 204, 208 (Tex.Crim.App. 2004).

        “The trial court, as factfinder, is the sole judge of witness credibility at a hearing on a

motion for new trial with respect to both live testimony and affidavits.”   Okonkwo v. State, 398

S.W.3d 689, 694 (Tex.Crim.App. 2013).        Salazar, 38 S.W.3d at 148.      If there is conflicting

evidence on an issue of fact, the trial judge determines the issue and there is no abuse of

discretion in overruling the motion for new trial.           Lewis v. State, 911 S.W.2d 1, 7

(Tex.Crim.App. 1995); Thomas v. State, 699 S.W.2d 845, 854 (Tex.Crim.App. 1985); Ford v.

State, 129 S.W.3d 541, 547 (Tex.App. – Dallas 2003, pet. ref’d).

                                         Applicable Law

        Criminal defendants have the right at trial by an impartial jury under both the Sixth

Amendment and Article I, Section 10 of the Texas Constitution.       Uranga v. State, 330 S.W.3d


                                                 5
301, 304 (Tex.Crim.App. 2010). During voir dire, if a venire member withholds material

information, the defendant is unable to intelligently exercise his challenges and peremptory

strikes and his ability to select an impartial jury is hindered.   See Franklin v. State, 12 S.W.3d

473, 477-78 (Tex.Crim.App. 2000); Salazar v. State, 562 S.W.2d 480, 482 (Tex.Crim.App.

1978).    To show juror misconduct, the complainant must establish that the juror withheld

information during voir dire despite the complainant’s due diligence.        Franklin v. State, 138

S.W.3d 351, 355-56 (Tex.Crim.App. 2004).        Material information is that which has a tendency

to show a bias. Id. at 356.

                                              Analysis

         Appellant argues the testimony at the hearing on the motion for new trial established

Oechsner knew the complainants and their family.         Accordingly, he maintains the trial court’s

denial of his motion for new trial was error because through no fault of his own, he was unable to

determine the extent of Oechsner’s relationship with the complainant and their family and

intelligently use his peremptory challenges due to Oechsner’s failure to disclose material

information during voir dire.

         Appellant cites three cases in support of his argument.      In Von January v. State, 576

S.W.2d 43, 45 (Tex.Crim.App. 1978), the Texas Court of Criminal Appeals reversed the

defendant’s murder conviction because a juror failed to answer when the jury panel was asked if

anyone knew the victim and members of the victim’s family.          Id. at 44.   At a hearing on the

defendant’s motion for new trial, it was determined that the juror had known the victim’s father

for more than thirty years, had frequented a restaurant owned by him for the same number of

years, and that both the victim and the victim’s father would sit at a table with the juror on those


                                                  6
occasions, and that many customers felt that the juror knew and was friends with the victim and

the victim’s father.   Id.   The Court found the trial court erred in denying the defendant’s

motion for new trial because the juror failed to truthfully answer the question which precluded

the defendant from exercising his peremptory challenges.       Id. at 44, 45.

       In Salazar v. State, 562 S.W.2d 480 (Tex.Crim.App. 1978), an indecency with a child

case, the defendant was a Mexican-American male charged with exposing his genitalia to a

young girl.   Id. at 481, 482-83.     In that case, the juror withheld the fact that he had witnessed

a Mexican-American male sexually assault his own daughter five years prior.            Id. at 483.   The

juror also testified against his daughter’s assailant at a previous trial.             Id.   The Court

determined that the juror had withheld material information and that the defendant was entitled

to a new trial because he was without fault or lack of diligence and was deprived of his right to

peremptorily challenge the juror.    See id.

       In Franklin v. State, 12 S.W.3d 473 (Tex.Crim.App. 2000), in an aggravated sexual

assault of a child case, a juror who did not respond during voir dire about knowing the victim,

recognized the victim when the victim was called to testify.        Id. at 475-76. After informing

the trial court that she knew the victim because she had a daughter in the same girl scout troop as

the victim and was the troop’s assistant leader, the trial court asked the juror if she could listen to

the evidence in the case and base her judgment solely on the evidence presented at trial rather

than her prior relationship with the victim.   Id. at 476. The juror indicated that she could.       Id.

       The defendant then moved for a mistrial, which was denied.                Id.    The defendant

alternatively asked for additional questioning of the juror about the nature of her relationship

with the victim, the duration of that relationship, whether she could put aside that relationship,


                                                  7
and whether that relationship would tend to give more or less credibility to the victim’s

testimony.   Id. The trial court denied the defendant’s request.        Id. The Court of Criminal

Appeals found the trial court erred in denying the defendant the opportunity to ask questions of

the juror and remanded the case for a harm analysis.      Id. at 479.    On review of the appellate

court’s opinion on remand, the Court affirmed the court of appeals’ conclusion that reversible

error occurred because the trial court prevented proper development of the record regarding

whether the relationship between the juror and the victim had a tendency to show bias, and that

the record did not establish error to be harmless beyond a reasonable doubt.      Franklin v. State,

138 S.W.3d 351, 354, 355-56 (Tex.Crim.App. 2004).

       The cases relied upon by Appellant involved jurors who deliberately concealed

information during voir dire. The instant case is distinguishable from those cases. Here,

Oechsner did not respond during voir dire about knowing the victims or their families and at the

motion for new trial, through his affidavit testimony, he affirmed he did not know the victims or

their families.   Although Appellant contends the evidence presented at the hearing on his

motion for new trial established that Oechsner knew the complainants and their families, a

review of the testimony at the hearing on the motion for new trial shows otherwise.             The

affidavits and witness testimony relied upon by Appellant to establish Oechsner had prior

personal knowledge and a relationship with the alleged victims and certain members of their

families are based on suspicions and speculations.

       As the sole judge of witness credibility, the trial court considered the affidavits and heard

the testimony of the witnesses and implicitly determined that Oechsner did not know the victims

or their families such that he did not withhold material information during voir dire.          See


                                                 8
Okonkwo, 398 S.W.3d at 694.       Because the trial court was presented with conflicting evidence,

it did not abuse its discretion in implicitly finding that Oechsner did not know the victims or their

families and denying Appellant’s motion for new trial.      Lewis, 911 S.W.2d at 7.     Issue One is

overruled.

                                         CONCLUSION

       The judgment of the trial court is affirmed.



                                              GUADALUPE RIVERA, Justice
July 23, 2014

Before McClure, C.J., Rivera, and Rodriguez, JJ.

(Do Not Publish)




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