NO. 12-12-00330-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

KEVIN GREGORY KATHRINE, 

APPELLANT

V.

THE STATE OF TEXAS,

APPELLEE

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APPEAL FROM THE 159TH 

JUDICIAL DISTRICT COURT

ANGELINA COUNTY, TEXAS

MEMORANDUM OPINION

Kevin Gregory Kathrine appeals his conviction for aggravated sexual assault of a child 

for which he was sentenced to imprisonment for forty years. Appellant contends in one issue 

that the presumption of innocence was tainted. We affirm.

BACKGROUND

Appellant was indicted for two counts of aggravated sexual assault of a child and two 

counts of indecency with a child. He pleaded not guilty and requested a jury trial. Dale Summa, 

an assistant district attorney in Angelina County, represented the State of Texas at trial, and

Appellant was represented by Lufkin attorney Bill Agnew. The following is an excerpt from the 

State’s voir dire:

MR. SUMMA: I'm just about to finish up my questioning. I want to remind you-all that nobody 

can think of all the questions to ask. Okay? Mr. Agnew's going to have a chance to ask some 

questions here in just a minute. Will probably be a little bit different than mine, different variation. 

Kind of the same and maybe a different variation. But that's fine. Nobody can think of all the 

questions to ask. And occasionally what happens is after the jury's selected and their names are 

called to go in the jury box, somebody will say, "You know, there's something I really wanted to 

tell you about me serving on this jury. But since nobody really asked the question, I wasn't sure 

when to speak up." Well, in a sense, this is kind of like getting married. Speak now or forever 

hold your peace. If there's some question or problem, maybe after talking about it there's not a 

problem. But once you're in the jury box and chosen, then it becomes a little bit harder to fix the 

problem. You know what I mean? So if you think there's something the judge or Mr. Agnew or 
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myself ought to know about you serving on this jury, let us know, particularly if it causes you 

some concern if you don't think you could be fair for both sides at this point in time.

(Show of hands)

MR. SUMMA: Okay. Mr. Ward.

VENIREPERSON 24: Well, I guess I'm bad about jumping to conclusions.

MR. SUMMA: Uh-huh.

VENIREPERSON 24: When the defendant walked in, I said right away he looked like a 

pedophile, to me.

MR. SUMMA: Okay. Well, I think I probably need to visit with you at the bench, then. Okay?

VENIREPERSON 9: And I was sort of...

MR. SUMMA: Well –

VENIREPERSON 9: Not –

MR. SUMMA: -- I'll make a note of that, Ms. Mettlen. But you ever hear the term that you can't 

always tell a book by its cover?

THE VENIRE: Right. (Moving heads up and down).

MR. SUMMA: Sometimes you can, but not always. And what you're supposed to judge this case 

based on is the evidence. Okay? And if you have some concerns that you can't judge this case 

based on the evidence and the reasonable inferences from it, that is something that we do need to 

know. And perhaps, Ms. Mettlen and Mr. Ward, maybe we'll talk about this a little bit after Mr. 

Agnew's questioning.

After Summa had completed the State’s questioning of the venirepersons, Agnew began 

his portion of the voir dire with the following:

MR. AGNEW: Mr. Ward, let me ask you something. Why do you think I have a ponytail, if you 

had to guess?

VENIREPERSON 24: (Inaudible).

MR. AGNEW: What do you think it says about me that I have a ponytail? What do you think of 

when you see a guy like me standing up here as a lawyer with a ponytail? What do you think of 

me?

VENIREPERSON 24: Probably think you rode a motorcycle.

MR. AGNEW: Okay. And I say this because I want to sort of show you something. Years ago, I 

had friends of mine whose daughters, as they were going from kind of being little girls to teenage 

girls and had long hair, they would cut their hair off and donate it to Locks of Love. I also come 

from a long line of men who are really tall and really skinny but bald. So, to me, I was like, "You 

know, hey. I could do that." I mean, I've got a good head of hair. I can grow my hair for Locks of 
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Love. And the reason I say that is you commented about my client. I mean, there was a long time

people -- it would get back to me that people would refer to me as the long-haired hippy lawyer 

with a beard. And I know that that's not a compliment. But it's also not true because -- the facial 

hair, I can't give you any real good explanation for why I have that that has any good cause or 

anything. But I'm about as middle of the road as they come. And a lot of people mistake me for 

being something different than that because of the way that I look. And I just wanted to talk to you 

about that.

Following this, Agnew began the process of questioning the remaining venirepersons. 

Toward the end of his questioning, the following exchange occurred:

MR. AGNEW: Who here have family or friends in law enforcement? Raise your hand and hold it 

up for me. If that affects your ability to be a fair and impartial juror, keep your hand up. If it 

doesn't affect you, put it down.

(Show of hands)

MR. AGNEW: Mr. Ward, you think it does?

VENIREPERSON 24: Well, yeah. I had -- yeah.

MR. AGNEW: Okay. Was there anyone over here that felt the same way as Mr. Ward?

THE VENIRE: (No response).

Following Summa’s and Agnew’s questioning of the jury, the trial court immediately 

granted Agnew’s challenges for cause to venirepersons 9 and 24 and Summa’s challenges for 

cause as to venirepersons 3 and 26. A twelve person jury was then empaneled. The jury found 

Appellant guilty of one count of aggravated sexual assault of a child and sentenced him to forty 

years of imprisonment. This appeal followed.

COMMENTS DURING VOIR DIRE

In his sole issue, Appellant contends that the trial court erred in failing to declare a 

mistrial or take any remedial measure sua sponte when egregiously harmful comments were 

made by a prospective juror during voir dire. Appellant concedes that he did not request the 

court to instruct the venire to disregard venireperson 24’s statement that Appellant “looked like 

a pedophile, to me” or move for a mistrial. Appellant contends, however, that this statement was

structural error because it tainted the presumption of innocence, affecting the fairness of the 

proceedings. Therefore, he urges, the error can be raised for the first time on appeal. As 
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authority to support this argument, Appellant cites Blue v. State, 41 S.W.3d 129 (Tex. Crim. 

App. 2000). There, a plurality of our court of criminal appeals determined that comments of a 

trial judge which tainted Appellant’s presumption of innocence in front of the venire constituted

fundamental error of constitutional dimension and required no objection. Id. at 132. The State 

responds that Appellant waived this issue on appeal by failing to raise the issue in the trial court 

during voir dire. 

Applicable Law

Ordinarily, to preserve error for appellate review, the complaining party must make a 

timely request, objection, or motion that states the grounds therefor, and obtain a ruling. TEX. R.

APP. P. 33.1(a)(1). However, if the alleged error of which the defendant complains is 

fundamental error affecting substantial rights, no objection is necessary to preserve error. TEX.

R. EVID. 103.

The bill of rights in the Texas Constitution guarantees litigants a right to trial by a fair 

and impartial jury. Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 749 (Tex. 2006). The voir 

dire process is designed to ensure, to the fullest extent possible, that an intelligent, alert, 

disinterested, impartial, and truthful jury will perform the duty assigned to it. Armstrong v. 

State, 897 S.W.2d 361, 363 (Tex. Crim. App. 1995). Voir dire inquiry into potential juror bias 

and prejudice thus is proper to determine whether jurors are qualified by statute and to seek 

information that allows counsel to intelligently exercise their peremptory strikes. Hyundai, 189 

S.W.3d at 750.

Bias, in its usual meaning, is an inclination toward one side of an issue rather than to the other, but 

to disqualify, it must appear that the state of mind of the juror leads to the natural inference that he 

will not or did not act with impartiality. Prejudice is more easily defined, for it means 

prejudgment, and consequently embraces bias; the converse is not true.

Id. at 751.

A defendant’s complaint concerning the voir dire process may take three forms: (1) a 

timely, specific objection, (2) a request for an instruction to disregard, and (3) a motion for a 

mistrial. Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004). The traditional and 

preferred procedure for a party to voice its complaint has been to seek these forms of relief in 

sequence – that is, (1) to object when it is possible, (2) to request an instruction to disregard if 

the prejudicial event has occurred, and (3) to move for a mistrial if a party thinks an instruction 

to disregard was not sufficient. Id. An instruction to disregard attempts to cure any harm or 
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prejudice resulting from events that have already occurred. Id. Where the prejudice is curable, 

an instruction eliminates the need for a mistrial, thereby conserving the resources associated with 

beginning the trial process anew. Id. The party who fails to request an instruction to disregard 

will have forfeited appellate review of that class of events that could have been “cured” by such 

an instruction. Id. at 70.

Analysis

The purpose of the voir dire examination is to expose any bias or interest of the 

prospective jurors that might prevent full consideration of the evidence presented at trial. 

Armstrong v. State, 897 S.W.2d 361, 369 (Tex. Crim. App. 1995) (en banc). In fact, Agnew 

specifically asked, after venireperson 24’s statement, whether anyone “other than the people who 

have already spoken” was unable to wait until after hearing all the evidence to decide whether 

Appellant was guilty. He later asked if any of the venirepersons had family or friends in law 

enforcement and, if so, whether that would affect the person’s ability to be a fair and impartial 

juror. Only venireperson 24 responded in the affirmative. Agnew then specifically asked if any 

other venirepersons felt the same way, and there was no response. Appellant thus took 

advantage of his opportunity during voir dire to question the venirepersons about whether they 

had the same mindset as venireperson 24 and if it would affect anyone’s deliberations after 

hearing the evidence. See Draughon v. State, 831 S.W.2d 331, 337 (Tex. Crim. App. 1992). 

None, other than venireperson 9, indicated that it would.

In the present case, the system worked as it was intended to. Appellant was able to 

discover the prejudices of venirepersons 24 and 9 and use his challenges for cause to remove 

them from the jury panel. See Hyundai, 189 S.W.3d at 750. Appellant cites no cases in which a 

statement similar to that made by venireperson 24 was held to be fundamental error. And we 

have been unable to locate any such cases. Further, Blue v. State, which is cited by Appellant, 

relates to the tainting of the presumption of innocence by a trial judge’s comments. A judge is 

duty-bound to perform his judicial duties without bias or prejudice. Tex. Code Jud. Conduct, 

Canon 3B(5), reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G, app. B (West 2013). And a 

judge shall not in the performance of judicial duties, by words or conduct, manifest bias or 

prejudice. Id. Canon 3B(6). The duties of a venireperson do not rise to the same level as the 

judge conducting the trial. Therefore, Blue is inapplicable here.
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Based upon our review of the record, we hold that the statement by venireperson 24 did 

not taint the presumption of innocence, and therefore no fundamental error occurred. Because 

Appellant did not object to the statement at trial, he has forfeited any complaint about the voir 

dire process on appeal. See Young, 137 S.W.3d at 70. Appellant’s sole issue is overruled.

DISPOSITION

Having overruled Appellant’s sole issue, the judgment of the trial court is affirmed.

JAMES T. WORTHEN

 Chief Justice

Opinion delivered August 29, 2013.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

AUGUST 29, 2013

NO. 12-12-00330-CR

KEVIN GREGORY KATHRINE,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the 159th District Court 

of Angelina County, Texas (Tr.Ct.No. 2012-0303)

THIS CAUSE came to be heard on the appellate record and briefs filed 

herein, and the same being considered, it is the opinion of this court that there was no error in the 

judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment of 

the court below be in all things affirmed, and that the decision be certified to the court below 

for observance.

James T. Worthen, Chief Justice.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.