                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-09-00405-CR


WILLIAM EARL ALEXANDER                                               APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE



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

          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

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                        MEMORANDUM OPINION1
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      In a single issue, William Earl Alexander challenges his conviction and

ninety-nine year sentence for aggravated assault with a deadly weapon because

a juror did not disclose during jury selection that she recognized him. We affirm.

                                   Background

      During jury selection, the State asked, “How many people feel like they

might know [appellant]?”     Several people responded affirmatively, and the
      1
       See Tex. R. App. P. 47.4.
prosecutor told them that he was “[p]robably going to talk about that at the end of

the voir dire in a more private setting, about what you know about [appellant].”

After the jury convicted appellant and the trial court sentenced him in accordance

with the jury’s assessment of punishment, appellant filed a motion for new trial, in

which he alleged that “a juror in the case failed to disclose a prior relationship

with the defendant during jury selection,” which “prevented the defendant from

intelligently exercising his peremptory challenges.”

      At the new trial hearing, appellant testified that a friend who had been at

the trial told him “later” that “maybe one of the jurors knew [appellant].” Appellant

believed that juror Ogle was an owner or co-owner of a private nightclub in

Granbury from which appellant had been ejected several times.2 Ogle was not

one of the jurors who admitted knowing appellant during voir dire. Appellant did

not recognize Ogle during the trial, and he admitted that he did not know her

personally, nor would he have ever realized that he knew her but for his friend’s

telling him so. According to appellant, however, if he had known Ogle’s identity,

he would have exercised a peremptory strike against her.

      Ogle filed a sworn affidavit and testified at the new trial hearing. She said

that she does not know appellant and that she did not recognize him during voir

dire. On the second day of trial, she recognized appellant’s face but could not


      2
       Appellant said he was thrown out of the club two or three times for
“confrontations” as opposed to actual fighting, but he agreed that the ejections
“made a scene” each time.

                                         2
remember where she had seen him. Ogle did not tell the court or the jury that

she recognized appellant’s face. She testified that she was never personally

involved with throwing appellant out of the club and that she was never involved

with any problems her employees had with throwing appellant out of the club.

Ogle did not know appellant’s reputation. According to Ogle, her recognizing

appellant’s face had no effect on her verdict.

      The trial court denied appellant’s motion for new trial.

                                     Analysis

      Appellant contends that the juror withheld material information during the

voir dire process that affected his opportunity to intelligently exercise his

peremptory challenges.

      Initially, the burden is on the parties to be diligent during voir dire and ask

all pertinent questions to reveal potential bias. Gonzales v. State, 3 S.W.3d 915,

917–18 (Tex. Crim. App. 1999); Lopez v. State, 261 S.W.3d 103, 106 (Tex.

App.––San Antonio 2008, pet. ref’d), cert. denied, 130 S. Ct. 403 (2009). When,

notwithstanding the complaining party’s diligence during voir dire, a juror later

discloses his knowledge of or relationship with a witness, the juror is considered

to have withheld information during voir dire. See Franklin v. State, 12 S.W.3d

473, 477 (Tex. Crim. App. 2000) (“Franklin I”); Lopez, 261 S.W.3d at 106–07.

When the withheld information is material, it is constitutional error to deny a

motion for mistrial because it denies parties the opportunity to exercise their

challenges, hampering the selection of a disinterested and impartial jury.

                                         3
Franklin v. State, 138 S.W.3d 351, 353–54, 356–57 (Tex. Crim. App. 2004)

(“Franklin II”); Salazar v. State, 562 S.W.2d 480, 482 (Tex. Crim. App. 1978);

Lopez, 261 S.W.3d at 107. When the withheld information is not material and the

record does not show the appellant has been deprived of an impartial jury or

denied a fair trial, the trial court’s denial of a motion for mistrial is not error.

Decker v. State, 717 S.W.2d 903, 907–08 (Tex. Crim. App. 1986) (op. on reh’g);

Lopez, 261 S.W.3d at 107.

      “To determine materiality, we evaluate whether the withheld information

would likely reveal the juror harbored a bias or prejudice to such a degree that

the juror should have been excused from jury service.” Lopez, 261 S.W.3d at

107; Sypert v. State, 196 S.W.3d 896, 900 (Tex. App.––Texarkana 2006, pet.

ref’d). “[M]ere familiarity with a witness is not necessarily material information.”

Franklin I, 12 S.W.3d at 478.     A potential juror’s acquaintance with a witness is

material only if the nature of the relationship reveals a potential for bias or

prejudice on the part of the juror.         See id.; Decker, 717 S.W.2d at 907.

Moreover, the fact that the juror did not intentionally withhold information “is

largely irrelevant when considering the materiality of the information withheld.”

Franklin I, 12 S.W.3d at 478. “That a juror will state that the fact that he withheld

information will not affect his verdict is not dispositive of the issue where the

information is material and therefore likely to affect the juror’s verdict.” Id.

      Here, Ogle testified only that she recognized appellant’s face, but she did

not know from where. She did not make any connection between appellant and

                                           4
the club. Likewise, appellant did not know Ogle or recognize her; he did not

make any connection between her and the club until a friend pointed it out.

Moreover, Ogle knew nothing about appellant’s reputation and had no personal

involvement with his being thrown out of the club. In fact, there is no evidence

that her connection to the club was of a nature that she would necessarily have

known about appellant’s being thrown out.3 Thus, nothing in the motion for new

trial evidence showed that the nature of the potential acquaintance between

appellant and Ogle revealed a potential bias or prejudice on the juror’s part. See

Decker, 717 S.W.2d at 906–08; Lopez, 261 S.W.3d at 108.

      We overrule appellant’s sole issue.

                                      Conclusion

      Having overrruled appellant’s sole issue on appeal, we affirm the trial

court’s judgment.



                                                   TERRIE LIVINGSTON
                                                   CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; MCCOY and MEIER, JJ.

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

DELIVERED: October 21, 2010


      3
         Ogle testified only that she was “connected to” the club, which was named
R.C.’s, and that she was the “R” in the name. At the time of the motion for new
trial, the club was no longer operating.

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