                                    NUMBER 13-06-00564-CR

                                   COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


JUAN JOSE SANCHEZ,                                                                   Appellant,

                                                       v.

THE STATE OF TEXAS,                                                                   Appellee.


                         On appeal from the 63rd District Court
                              of Val Verde County, Texas.


                                MEMORANDUM OPINION

       Before Chief Justice Valdez and Justices Yañez and Garza
               Memorandum Opinion by Justice Yañez

      Appellant, Juan Jose Sanchez, was convicted of sexual assault of a child, a second-

degree felony and was sentenced to five years' confinement.1 Sanchez challenges the

judgment by three issues. In his first two issues, Sanchez contends that: (1) the trial

court's comment that "police officers are the number one enforcers of [the] constitution"


      1
          See T EX . P EN AL C OD E A N N . § 22.011(a)(2)(A) (Vernon Supp. 2010).
during voir dire constituted fundamental error; and (2) "the credibility of the verdict was

fundamentally undermined" by a juror who had pleaded guilty to a felony crime of moral

turpitude. In the alternative, Sanchez requests, by his third issue, that this Court abate the

appeal and remand the case so that a hearing may be held on his motion for new trial.2

We affirm.3

                                              I. BACKGROUND

        T.G. testified that she lived with her mother, her mother's boyfriend, and her uncle,

Sanchez. T.G. stated that, on April 18, 2004, after returning from a short trip to San

Antonio, Texas, she went to Sanchez's bedroom to talk to him.4 T.G. testified that she told

Sanchez that while she was in a hotel's swimming pool, a boy, approximately her age, put

his finger in her vagina.5 T.G. stated that while she talked to Sanchez, she was lying on

her stomach on the floor playing with her cat and Sanchez was putting clothes away in his

closet. T.G. testified that Sanchez then "sat down on her legs" and started rubbing her

back. According to T.G., Sanchez then turned her around onto her back, pulled her jeans

and underwear down to her knees, put his finger in her vagina, and moved it "back and



        2
          W e note that the State filed a m otion requesting that this Court abate Sanchez's appeal and rem and
the case to the trial court for a hearing on Sanchez's m otion for new trial. On August 23, 2007, this Court
granted the State's m otion, abated Sanchez's appeal, and rem anded the case to the trial court so that a
hearing could be held on Sanchez's m otion for new trial. The trial court held a hearing on Sanchez's m otion
on October 12, 2007, and after hearing evidence, the trial court denied Sanchez's m otion for new trial and
issued findings of fact and conclusions of law. Sanchez has received the relief he requested in his third issue.
Therefore, we overrule Sanchez's third issue as m oot.

        3
         This appeal was transferred to this Court from the Fourth Court of Appeals pursuant to a
docket-equalization order issued by the Texas Suprem e Court. See T EX . G O V 'T C OD E A N N . § 73.001 (Vernon
2005).

        4
            T.G. was born on February 15, 1990; therefore, she was fourteen years old on the date of the
incident.

        5
          On re-direct exam ination, regarding the incident with the boy in the swim m ing pool, the State asked,
"Did you [T.G.] consider that being m olested," and T.G. responded, "No."

                                                       2
forth." T.G. testified that Sanchez eventually asked her if she wanted him to stop, and she

said, "Yes." T.G. explained that after Sanchez stopped, she pulled her underwear and

jeans back on and wanted to leave; however, Sanchez asked T.G. to sit with him and talk

for a little while. T.G. testified that Sanchez told her that he was sorry and he would never

do it again. According to T.G., she then went to the kitchen and grabbed a knife because

she "didn't want to live anymore." T.G. stated that she dropped the knife, dropped down

to her knees, and started crying; she then told her mother what Sanchez had done, and

her mother called the police.

        Robert Hernandez, a sergeant with the Del Rio Police Department's patrol division,

testified that he tape-recorded an interview with Sanchez. Sergeant Hernandez stated that

he advised Sanchez of his constitutional rights and that Sanchez signed a "waiver of

rights." Sergeant Hernandez informed Sanchez of T.G.'s allegations and asked Sanchez

for his version of the incident. According to Sergeant Hernandez, Sanchez stated that he

had "gone too far" and that Sanchez was "moving his left index finger down like this, like

that, he had placed his hand on her crotch as he said and did this and told her to stop."

Sergeant Hernandez stated:

        That the way Mr. Sanchez explained [the incident] was that [the] young lady
        had lowered her pants and underwear down herself below her
        crotch. . . . He stated it was an accident. . . . He says that the young lady
        grabbed his hand while he was on her crotch, took both of his
        hands. . . . He stated that they had—it had gone too far, we shouldn't have
        done this, it shouldn't have gone this far.

The trial court then admitted State's exhibit two—three audio tapes of Sergeant

Hernandez's interview with Sanchez—into evidence without objection.6


        6
        It appears from the record that only portions of the tapes were played in open court when Sergeant
Hernandez identified each voice heard on the tapes.

                                                    3
       On cross-examination, Sanchez's counsel asked Sergeant Hernandez, "And if the

force of her hand caused him to penetrate, okay, that wouldn't be a criminal offense, would

it," Sergeant Hernandez replied, "If what you say is true, yes, sir." Sanchez's counsel then

asked, "Okay, and if he didn't do it on purpose, but the force from her—the child putting her

hand on his caused any penetration whatsoever, you understand that is not his own

intentional act, correct," Sergeant Hernandez responded, "I wouldn't be able to describe

what those intentional acts were."

       On the audio recording, Sanchez admitted that "just the tip" of his index finger on

his left hand went inside T.G.'s vagina. During the interview, Sanchez appears to claim

that his finger somehow accidentally slipped into her vagina. He stated that T.G. was

explaining what had happened with the boy at the swimming pool and that she pulled her

pants down and "showed [Sanchez] what [the boy] did." According to Sanchez, he asked

T.G. to pull her pants back up and told her "we can't." Sanchez speculated that T.G. was

attempting to "lure" him into a sexual encounter. Sanchez claimed that he touched T.G.'s

vagina when he attempted to pull up her pants.

       T.G.'s mother, C.S.L., testified that she was lying in bed when T.G. came into the

room waving at C.S.L. and nudging her. C.S.L. asked T.G. to tell her what was wrong, and

T.G. was unable to talk and continued waving at C.S.L. C.S.L. stated that she then got up,

followed T.G. to the hallway, and T.G. still could not talk. C.S.L. described T.G. as having

her eyes wide open, "in shock," and "sort of" jumping up and down. C.S.L. testified that

she continued asking T.G. what was wrong, and thinking that T.G. was choking, "hit" her

back. After approximately thirty minutes, T.G. "blurted out something." However, C.S.L.

stated that she could not understand what T.G. said. Eventually, C.S.L. understood what


                                             4
T.G. was saying, and C.S.L. called the police.7 According to C.S.L., approximately a week

later, while she was at her mother's house, Sanchez arrived, began crying, and told the

family, "yes, I did it . . . ." C.S.L. stated that she could not understand anything else

Sanchez said.

       Sanchez was indicted for the offense of sexual assault of a child and the case went

to trial.8 During voir dire, defense counsel asked the jury panel the following:

       Okay. How many people feel the exact same way that [venire member forty-
       two] does, that because you give greater weight to the testimony of a peace
       officer, you would require a defendant in any case, not just this case, any
       case to produce evidence in order to demonstrate his guilt—his innocence,
       excuse me. . . . Okay. Now, even though you feel that way can you put
       aside those feelings, because in fact your feelings are in direct contradiction
       to what the law requires, okay? The law doesn't require any defendant in
       any criminal case to produce one piece of evidence for one simple reason.
       He's presumed innocent, and that presumption of innocence is so great that
       if you had a hundred police officers testifying and you didn't believe their
       testimony beyond a reasonable doubt, even though he sat in silence and
       remained mute, you would be duty bound to acquit, okay? Again, that's the
       law, and that may not be how you feel, but the question is, can you set aside
       your feelings and follow the law, so let's start with [venire member twelve].
       Can you set aside your feelings and follow the law, or do you think that a
       defendant has got to produce evidence in order to overcome what a peace
       officer testifies to?

Venire member twelve replied, "I'm a law enforcement officer, so I tend to give it a little

more credit, you know, to the law enforcement officer. It would be hard to . . . ." At this

point, the trial court interrupted venire member twelve and stated:

       Excuse me, excuse me. Before we do this[,] listen very carefully to what
       [defense counsel] is talking about here. I know we have a number of law
       enforcement officers on the panel today, and I know you take this personally.
       I take the United States Constitution and the laws that form this country
       personally, too, and I believe that police officers are our number one
       enforcers of that constitution, so listen carefully to what [defense counsel] is

       7
           C.S.L. did not state what T.G. said to her about the incident.

       8
           See T EX . P EN AL C OD E A N N . § 22.011(a)(2)(A).

                                                           5
       asking you. Go ahead.

Defense counsel did not object to the trial court's comment and stated:

       Let me see if I can give it to you differently. I'm not here to trap police
       officers or teachers or anyone else, and quite frankly, having been a
       prosecutor, I know exactly how you feel, but even though you feel that way,
       that may not be what the law requires in order for you to sit on the jury. That
       attitude could be perfectly reasonable when you are out in the field making
       a bust or an arrest, okay? If I were an officer making arrests, I would trust
       my partner more than I would a civilian who told me something. That's
       normal, but out here you are in a different situation. My question is, can you
       put aside the way that you have been trained to think and the way you
       normally think and say look, I'm going to follow the law; I'm going to follow
       the constitution, and I'm going to do what I swear to do if I'm selected as a
       juror. That's my question. Can you judge a civilian the same way on just a
       standard easy fact situation as you would—would you give his testimony the
       same weight that you would a peace officer as to what color the wall is, or
       would you naturally believe the police officer if he said it was beige as
       opposed to yellow? That's all I'm asking. Do you think you can do that or
       not, [venire member twelve], and I'm not criticizing you.

After Sanchez's trial counsel completed his questioning of the jury panel, the trial court

stated the following:

       When an attorney asks a question that could result in a challenge for cause
       I have to make absolutely sure you understand what he's asking. There is
       a major difference between whether we have the highest hope that police
       officers will always tell the truth. I think every person in this room has that
       feeling. That's one thing. It is quite another thing when an attorney is asking
       you when that police officer walks through that door, does he walk through
       invested with absolute truth like no other person, whether it is a preacher,
       president of the United States or anybody else. When they walk through the
       door of this courtroom they are like anybody else. You get on that witness
       stand, you testify and that jury determines whether you are telling the truth
       or you are fibbing. Nobody is couched with absolute—that privilege, and that
       is what the attorneys are asking you. Just because they are police officers
       would you automatically believe them, that they are telling the truth and
       nobody else, and does that automatically shift the burden of proof in a
       criminal case to the defendant's side of the case, which violates the United
       States Constitution. The United States Constitution says a person that is
       accused of a crime carries no burden of proof. Only the District Attorney
       carries the burden of proof, and that's the reason I asked that, so [venire
       member twelve], I wasn't jumping on you, I just wanted to make sure that
       was clear.

                                             6
The jury was empaneled, and after a trial on the merits, Sanchez was convicted of sexual

assault of a child.9 This appeal ensued.

                                         II. PRESERVATION OF ERROR

       By his first issue, Sanchez contends that the trial court's statement that he

"believe[d] that police officers are our number one enforcers of [the] constitution" was

fundamental error. Specifically, Sanchez argues that: (1) "[t]he trial judge's stated bias in

favor of law enforcement destroyed [his] presumption of innocence"; (2) the comment

"stripped [him] of his right to an impartial judge"; and (3) the comment "eviscerated [his]

right to an impartial tribunal." Finally, Sanchez claims that he suffered "great harm as a

result of the trial court's comments."

       As a general rule, a party must object to a trial court's comments in order to

preserve error for appellate review.10 Sanchez concedes that he did not object to the trial

court's comment that he complains of on appeal. However, relying on Blue v. State,

Sanchez argues that the trial court's comment amounted to fundamental error; therefore,

he was not required to object to preserve error.11

       In Blue, after apologizing to potential jurors for a delay in the proceedings, the trial

court blamed the defendant for the delay stating:

       Frankly, an offer has been made by the State or do I go to trial. And he [the
       defendant] has been back and forth so I finally told him [the defendant] I had
       enough of that, we are going to trial. You have been sitting out here and this
       is holding up my docket and I can't get anything done until we know if we are




       9
           See T EX . P EN AL C OD E A N N . § 22.011(a)(2)(A).

       10
            Blue v. State, 41 S.W .3d 129, 131 (Tex. Crim . App. 2000) (en banc) (plurality op.).

       11
            Id. at 132-33.

                                                           7
       going to trial or not.[12]

The trial court then told the potential jurors that he preferred for the defendant to plead

guilty because it would save time and resources.13 The Texas Court of Criminal Appeals

concluded that the trial court's comments amounted to fundamental error because "the

judge's comments imparted information to the venire that tainted the presumption of

innocence."14 The court reasoned that:

       A juror who knows at the outset that the defendant seriously considered
       entering into a plea agreement no longer begins with a presumption that the
       defendant is innocent. A juror who hears the judge say that he would have
       preferred that the defendant plead guilty might assume that the judge knows
       something about the guilt of the defendant that the juror does not. Surely,
       no trial judge would want an innocent man to plead guilty, no matter how
       much delay and expense he might be causing.[15]

       We find that Blue is distinguishable from the facts in this case. The record in this

case shows that the venire included several police officers, former police officers, or people

who worked closely with law enforcement. During the voir dire, defense counsel asked

generally if the members of the venire "give greater weight to what [a police officer] had to

say." Venire member twenty stated that "[i]n [his] line of work you learn to trust people with

a badge" and that he would "put more validity on what they [people with a badge] say than

somebody else. . . ." Several other venire members then stated that they agreed with that

sentiment—one stating that "all those people you named [witnesses for the State] are my

supervisors." Venire member forty-two stated that although he did not work with law



       12
            Id. at 130.

       13
            Id.

       14
            Id. at 132.

       15
            Id.

                                              8
enforcement, he was a "hearing officer with the school district," he "tended to lean towards

the policeman reviews or their summaries more," and he "tend[ed] to take their [police

officers'] word on [sic] more weight. . . ." When defense counsel asked if venire member

forty-two would require the defendant to "produce evidence to disprove whatever a peace

officer or police officer said," venire member forty-two replied, "Yes."                         Eight venire

members agreed with venire member forty-two's statements. Defense counsel then asked

if those members could "set aside [their] feelings and follow the law." Venire member

twelve stated that he was a law enforcement officer, and he "tend[ed] to give [police

officers] a little more credit."

        The trial court then interrupted the voir dire asking the venire to listen carefully to the

defense counsel's questions and acknowledging that the venire included members of law

enforcement. When the complained-of comment was made, it appears that the trial court

was attempting to clear up some confusion amongst the venire concerning questions

regarding the truthfulness of law enforcement personnel.16 Although the trial court's

comment may have been inartful, it appears that the trial court was attempting to convey

to the law enforcement officers present on the venire that it believed that police officers

play an important role in the administration of justice. Defense counsel immediately stated

that he was not there "to trap police officers" and clarified that he was attempting to

determine whether the venire members "would naturally believe the police officer if he said

[the wall] was beige as opposed to yellow" and that he was not "criticizing" venire member

twelve.


        16
          See Jasper v. State, 61 S.W .3d 413, 421 (Tex. Crim . App. 2001) (providing that the trial court's
com m ents were m erely "aim ed at clearing up a point of confusion" and did not rise "to such a level as to bear
on the presum ption of innocence or vitiate the im partiality of the jury").

                                                       9
        The trial court later explained that it has a duty to ensure that the venire members

understand the questions asked during voir dire and that there is a "major difference"

between a hope that police officers would always tell the truth and a belief that a police

officer is automatically telling the truth. The trial court also made it abundantly clear that

it was attempting to ensure that venire members understood that the mere fact that a

person is a police officer does not mean that he or she is telling the truth and that the

United States Constitution places the burden of proof on the State and that the accused

has no burden of proof.

        In Blue, the trial court's statement that it preferred for the defendant to plead guilty

implied that it knew that the defendant was guilty because, as the court of criminal appeals

explained, no trial court would want someone to plead guilty to a crime he or she did not

commit to save time and money. Here, the trial court did not imply that Sanchez was guilty

or state his opinion regarding Sanchez's guilt; and taking the complained-of comment in

context, the trial court was attempting, perhaps unsuccessfully, to clear up some

confusion.17 Therefore, the trial court's comment in this case did not rise to level of the

comments made by the trial court in Blue.18 We conclude that the trial court's comment in

this case was not so serious as to taint the presumption of innocence; and thus did not

constitute fundamental error. Accordingly, because Sanchez did not object to the trial

court's comment, he did not preserve this alleged error.19 We overrule Sanchez's first


        17
             See id.

          18
             See id. at 420-21; see also Brumit v. State, 206 S.W .3d 639, 644-45 (Tex. Crim . App. 2006)
(holding that the trial court's com m ent that a previous case m ade the trial court "think that anybody that ever
harm ed a child should be put to death" did "not reflect bias, partiality, or that the trial judge did not consider
the full range of punishm ent").

        19
             See Blue, 41 S.W .3d at 132 (concluding that no objection is required if the error is fundam ental).

                                                        10
issue.

                                         III. JUROR DISQUALIFICATION

         By his second issue, Sanchez challenges the trial court's denial of his motion for

new trial because Norma Rios, a member of the jury that convicted Sanchez, was

absolutely disqualified from serving on the jury.20 Sanchez argues that "[t]he mere

presence of a person who is absolutely disqualified from service may be sufficient evidence

of 'significant harm.'" The State concedes that Rios was absolutely disqualified to serve

as a juror. The record reveals and the State concedes that Norma Rios pleaded guilty to

the offense of tampering with physical evidence and was on deferred adjudication

community supervision when she served on the jury that convicted Sanchez.21

A. Pertinent Facts

         After we remanded this case to the trial court, a hearing on Sanchez's motion for

new trial was held. At the hearing, Sanchez presented the testimony of, among others, the

Honorable Thomas F. Lee, Jack Stern, and Rios.

         Judge Lee, the judge who presided over Sanchez's trial, testified that when he

"qualified the jury," he asked about felony convictions and pending felony charges.

According to Judge Lee, unless a juror informs him of the pending charges or convictions,

he must assume that the jurors are qualified.

         Stern, Sanchez's trial counsel, testified that Judge Lee told him that "there may have


         20
           In his brief, Sanchez com plains that the trial court erred in allowing his m otion for new trial to be
overruled by operation of law. However, as previously stated, we rem anded the case to the trial court, and
it denied the m otion after conducting a hearing.

         21
             See T EX . C OD E C R IM . P R O C . A N N . art. 35.16(a)(3) (Vernon 2006) (providing that a person m ay not
be im paneled if that person "is under indictm ent or other legal accusation for m isdem eanor theft or a felony");
T EX . P EN AL C OD E A N N . § 37.09(c) (Vernon Supp. 2010) (stating that the offense of tam pering with physical
evidence is a third degree felony).

                                                           11
been an unqualified juror on the panel"; on cross-examination, Stern clarified that he was

notified of the possible disqualified juror after the jury returned the verdict.22 On re-direct

examination, Stern testified that the motion for new trial he filed with the trial court stated,

"on the date following sentencing[,] prosecutors and the sitting judge advised defense

counsel that one of the jurors failed to disclose she was on felony deferred adjudication

probation."

       Rios testified that she completed a jury questionnaire prior to serving as a juror in

this case. Rios stated that on the questionnaire, she answered "No" to the question,

"[H]ave you ever been an accused, complainant or witness on a criminal case[?]" However,

at the motion for new trial hearing, Rios admitted that she had been accused of the felony

offense of tampering with evidence, that she received two years of deferred adjudication

community supervision after pleading guilty to that offense, and that she was still on

community supervision when she served as a juror in this case.

       The trial court denied Sanchez's motion for new trial. In its findings of fact and

conclusions of law, the trial court concluded that Rios was disqualified to serve as a juror

but that Sanchez failed to show that he suffered significant harm due to Rios's service.

The trial court also concluded that Sanchez "failed to elicit any evidence that juror Rios

brought any outside influence improperly to bear against any juror during the jury's

deliberations."

B. Standard of Review and Applicable Law

       We review the trial court's denial of a motion for new trial under an abuse of




       22
            The record does not reveal whether Judge Lee was told that Rios was not qualified after the verdict.

                                                       12
discretion standard of review.23

        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. We
        must view the evidence in the light most favorable to the trial court's ruling
        and presume that all reasonable factual findings that could have been made
        against the losing party were made against that losing party. 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.[24]

In a criminal case, a conviction

        may be reversed on the ground that a juror . . . was absolutely disqualified
        from service . . . only if: (1) the defendant raises the disqualification before
        the verdict is entered; or (2) the disqualification was not discovered or
        brought to the attention of the trial court until after the verdict was entered
        and the defendant makes a showing of significant harm by the service of the
        disqualified juror.[25]

C. Discussion

        Here, Sanchez discovered that Rios was disqualified after the verdict was entered;

therefore, he had the burden of showing that he suffered significant harm by Rios's service

on the jury.26 The trial court concluded that Sanchez had not shown significant harm.

Therefore, we must sustain Sanchez's issue only if no reasonable view of the record could

support the trial court's ruling.27

        Sanchez argues that Rios's mere presence during jury deliberations constituted

significant harm. In White v. State, the appellant argued that the mere presence of two



        23
             Charles v. State, 146 S.W .3d 204, 208 (Tex. Crim . App. 2004).

        24
             Id.

        25
         T    EX .   C OD E C R IM . P R O C . A N N . art. 44.46 (Vernon 2006).

        26
           See id.; W hite v. State, 225 S.W .3d 571, 574 (Tex. Crim . App. 2007) (explaining that when a
defendant discovers that a juror was not qualified to serve after the entry of verdict, "[a] duty on the defendant
arises in an appeal to m ake a showing of significant harm ") (internal quotations om itted).

        27
             See Charles, 146 S.W .3d at 208.

                                                                13
jurors who were not qualified to serve because each had pending criminal charges against

them caused him significant harm.28 The court of criminal appeals stated that it was

"unconvinced by [the] appellant's contention that the [disqualified] jurors' mere presence

was 'significant harm'" and that "[t]he plain language of the Rule 606(b) indicates that an

outside influence is something outside of both the jury room and the juror."29 We agree

with the court of criminal appeals, and we are not persuaded that Sanchez showed

significant harm merely by proving that Rios was disqualified from serving on the jury.30

At the motion for new trial hearing, although Sanchez proved that Rios was absolutely

disqualified, he presented no evidence that he suffered significant harm directly attributable

to Rios's service on the jury.31 Therefore, viewing the evidence in the light most favorable

to the trial court's ruling, we conclude that the trial court did not abuse its discretion in

denying Sanchez's motion for new trial.32 We overrule Sanchez's second issue.




         28
              W hite, 225 S.W .3d at 573-74.

         29
              Id. at 574. Rule 606(b) states, in pertinent part,

         a juror m ay not testify as to any m atter or statem ent occurring during the jury's deliberations,
         or to the effect of anything on any juror's m ind or em otions or m ental processes, as
         influencing any juror's assent to or dissent from the verdict or indictm ent. . . . However, a
         juror m ay testify: (1) whether any outside influence was im properly brought to bear upon any
         juror . . . .

T EX . R. E VID . 606(b).

         30
              See W hite, 225 S.W .3d at 574.

         31
           See W hite v. State, 181 S.W .3d 514, 517 (Tex. App–Texarkana 2005) aff'd, 225 S.W .3d 571 ("[T]he
record from the post-trial hearing m ust dem onstrate the defendant's alleged substantial harm is directly
attributable to the service of the objectionable jurors."); Ristoff v. State, 985 S.W .2d 623, 624 (Tex.
App.–Houston [1st Dist.] 1999, no pet.) (concluding that although the "[a]ppellant filed a m otion for new trial
asserting the juror was absolutely disqualified from jury service by virtue of her indictm ent[,]" the appellant
failed to m eet his burden because "at the hearing on appellant's m otions, [the] appellant m ade no attem pt to
show significant harm " and none was apparent from the record).

         32
              See Charles, 146 S.W .3d at 208.

                                                         14
                                    IV. CONCLUSION

      We affirm the trial court's judgment.



                                                     LINDA REYNA YAÑEZ,
                                                     Justice
Do not publish.
TEX . R. APP. P. 47.2(b).
Delivered and filed the
21st day of October 2010.




                                              15
