Criminal Law Blog by Defense Lawyer John Floyd and Mr. Billy Sinclair
Voir Dire, Inability to Consider Full Range of Punishment: Proper Objection and Practice to Preserve Error for Appeal
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
Sex offenses involving children are beyond a doubt the most difficult to defend, particularly when the allegations appear compelling and the witnesses are believable (here, here, and here). These kinds of sexual assault allegations are easy to indict and even easier to prosecute. All the prosecution needs is the victim’s testimony to secure and sustain a conviction. These offenses are difficult to defend because potential jurors enter the trial setting with a predisposed bias against anyone charged with a sex offense against a child. While the defense counsel tries to exclude these biased jurors from the jury, either through peremptory challenges or challenges for cause, too many effectively conceal their bias in order to serve and convict. These jurors want to be part of a process that convicts the insidious “child molester.”
Antonio Zavala Cardenas was indicted for three counts of aggravated sexual assault of a child and one count of indecency with a child. The evidence against him was indeed compelling. His aunt discovered him in bed with her four-year-old daughter, and suspecting the worse, she pulled the covers back to see her daughter’s pants and underwear pulled down and her nephew hurriedly trying to refasten his trousers. Besides the aunt’s testimony, the child testified that Cardenas had removed her underwear, exposed his penis to her, and rubbed his penis against her genitalia. Police testified that Cardenas admitted in a written statement that he had put his “hand down in front of [the child’s] pants” and rubbed “circles on the top of her vagina.”
Prior to the voir dire process, the trial judge explained the general law concerning the charged offenses and the permissible range of punishments. The judge informed the venire panel that Cardenas was:
“ … charged with the offense of aggravated sexual assault of a child. The range of punishment for that offense is not less than five years nor more than 99 years or life in the Institutional Division of the Texas Department of Criminal Justice. In addition to that, a fine of up to $10,000 may be assessed. The range of punishment for the offense of indecency with a child is not less than two nor more than 20 years in the Institutional Division of the Texas Department of Criminal Justice. And in addition to that a fine of up to $10,000 may be assessed in that case also.
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Failure to Strike Prosecutor, Victim of Sex Crime, from Jury not Ineffective Assistance of Counsel
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
The Sixth Amendment to the United States Constitution guarantees every criminal defendant a right to an impartial trial. 1/ Selecting a jury of twelve men and women to hear a criminal case is perhaps the most critical stage in the trial process where a defense attorney must provide effective representation. He has a pool of prospective jurors representing a cross-section of the community from which to select the people who will hear the facts and fairly consider the case. This jury pool is a minefield of human experiences that range from concealed bias and prejudice to open fairness and impartiality. The task of the defense attorney is to navigate through the minefield without exploding a mine that will injure his client’s opportunity for an impartial trial.
The constitutional guarantee of an impartial trial, in all actuality, begins with voir dire—a French term meaning “to speak the truth.” Voir dire is a pre-jury selection phase of the trial during which the prosecution and defense are afforded an opportunity, under the strict supervision of the trial judge, to question prospective jurors to determine if they are qualified and suitable to serve on a jury. These questions are often initially influenced by the questionnaires prospective jurors are required to fill out before the voir dire gets underway.
Texas criminal procedure grants ten peremptory challenges—the right of either party to exclude a potential juror for any reason or no reason at all so long as the challenge is not use to discriminate on the basis of race, gender, or ethnicity—to both the prosecution and the defense in non-capital felony cases and capital cases in which the State does not seek the death penalty. If two or more defendants are jointly tried, each defendant and the prosecution are entitled to six peremptory challenges. 2/
A defense attorney must utilize these peremptory challenges in a judicious manner. They are generally exercised when the attorney detects, either through direct responses from the prospective juror to specific questions or from mere instinct honed by years of trial practice, that a prospective juror is biased in a very specific sense or harbors prejudices in a general sense against particular defendants. And a defense attorney in Texas does not have a lot of time to make these calls. Most judges impose very restrictive time frames for completing the voir dire examination—ranging from twenty minutes to an hour. It is critical, therefore, that an attorney be thoroughly prepared before he/she enters the jury selection arena. (more…)
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