## In the Court of Appeals Second Appellate District of Texas at Fort Worth

___________________________ No. 02

- 18

- 00475

- CR

___________________________

On Appeal from the 371st Distr ict Court Tarrant County, Texas Trial Court No. 14960 31D

Before Kerr, Birdwell, and Bassel, JJ. Memoran dum Opinion by Justice Bassel 

### Q WENTON 

### N ARVELL 

### B ADGER 

### , Appellant

V



### . T HE 

### S T ATE OF 

### T EXAS2 MEMORANDUM OPINION
I. Introduction Appellant Qwenton Nar ve ll Badger appeals his conviction f or the m urder of
Demio ne Hicks

. See Tex. Penal Code Ann. § 19

. 02 (b), (c). Af te r the jury found Badger guilty , he plead ed true to an enhan cement, and the trial court sentenced him to thirty

- five years ’ con finement. In two points , Bad ger argues that the evide nc e is insufficient to support his conviction and that the trial court abuse d its discretion by denying his motion for mistrial that was premi sed on having an allegedly biased juror on the jury panel

. B ecause some of the wi tn ess es ’ testimon ies and forens ic evidence

connec t ed Badger to Hicks ’ s murder, we hold that the evidence is sufficient to support Badger ’ s conviction. A n d b ecause the record reflects th at defense counsel did not ask any question s calcul ated to bring out inf ormation that might have
indic ated the complain ed

- of juror ’ s inability to be imp artial and truthful , we ho ld that
the trial court d id not abuse its discretion by denying Badger ’ s motion for mistr ial. However, because the judgment reflects that the j ury , r ather th an the trial court assessed Badger ’ s pu nishment, we modify the judgment to co rrect that inaccuracy and
affirm the judgment as modified. II. Factual Background
A. Hicks ’ s Problems with a Cowo rker Vanessa Valle, who was Hicks ’ s girlfriend for over fifteen years, testified that in April 2017, a temporary job s ervice had placed Hicks with a beverage dist r ibution3 com pa ny located in southwest Fort Worth. Hi cks worked from 4 p.m. until whenever the job was finished

— sometime s around 3:00 a.m

. — and usually came home around
10:15 p.m. to eat his “ lunch

. ”
W h en Hicks came home for his lunch on April 18, 20 1 7 , he told Valle that he was upset with a guy f rom work. Valle was fea rful for H i cks and tol d him not to go back t o work. Hicks said that he had to take c are of his family, kissed V alle on the
forehead , and returned to work.
B. Badger and Hicks Exited the Pa rking Lot at the Same T i me T he daily log of vehicles from the guard shack at the Ben E. Kei th beverage
distribution center reflected that Ba dger, with license plate HR Z ## ## , entered at 10:07 p.m. o n A p ril 18 and left at 1: 1 0 a.m. on Ap ril 19. Hicks also l eft at 1:10 a.m. on April 19.
C. The Shooting Eric Wisdom, wh o worked on Will Rogers Boulevard near the Ben E. Keith beverage distribution ce nter , testified that he was sitting in his vehi cle during a work break on the night in qu estion a nd noticed a d ark

- colored vehicl e sitting on Will Rogers Boulev ard with its hea dlights on. Wisd om then h eard a gunshot followed approxi mately t en seconds later by a second gunshot

. After the second gunshot,
Wisdom saw anoth er set of headli ghts on a light

- colored vehic le , w hi ch came from
behind the sta tionary vehicle and sped past him , and he called 911.4 On cro ss

- examination, Wisdom testified that he was absolutely certain th at the vehicle that sped away was not bla ck or red. Wisdom believed that the person in the
l ig ht

- c olored car had fired the shots. Wisdom w rote out a statement at t he sce ne and gave it to the police. He was not contacted by the police a f ter that date.
Ida Barnes testified that her nephew De a u ndre Mitchell worked at the Ben E

. Keith dis tribution c enter and that she drove him to and from wor k

. S he recalled th at after she had picke d up Mitchell o n the night in question , she saw wha t she initially thought was a wreck

. As Barnes slowed to fifteen or tw enty miles pe r hou r , she saw
that there had not b een a wrec k bec ause there was n o damage to either car ; instead,

two men were standing outside their vehicles and appeared to be arguing. Ba rnes said
that a short black man 1 was near a mar oo n car , which was shaped like a Mercury or a Taurus and which w as p arked behind a black car that had a ta ll b lack man 2 near it

.

“ [N ]ot even two minutes ” after Barnes had driven less than two blocks past the
two cars, she heard a singl e gunshot and slowed down. In her rearview mirro r, s he

sa w th e ma r oon car speed around t he bla ck car and watched as the mar oon car sped
up to her

. Barnes acceler ated and called 911.
When t he mar oon car passe d Barnes ’ s vehicle, B arnes caught part of the license plat e

— an H and a Z

. Barnes testi fied that Will Ro gers Boulevar d did not have much

tr a ff ic on it at that time , which was after midnight.

1 T h e record reflected that Badger was five f e et, four inches tall

.

2 The record reflected that Hicks was six f e et, two or six f eet, three in ch es tal l.5 D
. Hick s ’ s Death
Of ficer Colli n Sweeney w it h the Fort Worth Poli ce Department (FWPD)
testified that he was dispatched to a shooting i n the 6900 block of Will Rogers
Boulevard at 1:15 a .m. on April 19 , 2017

. When Officer Sweeney arrived on the s cene

t wo minu tes later, he saw a bl ac k sedan that had cr ashed into a light pole. Of ficer Sweeney saw blood all over the windshield and dashboard and a black male slumped over the gear shift. Officer Swe ene y f elt what he thought was a hole or sliv ered skin

o n the driver ’ s neck. Hicks was pronounced dead in the emerg en cy room at John
Peter S mith H osp ita l at 1:42 a.m.
Dr. Mark Krouse, the chief deputy m e dical e xamin er who performed the
autopsy , testified that Hi cks was a healthy t hirty

- two

- y ear

- old man. The cause of his
death was blood l oss from the carotid a rtery injury due to a gunshot wound to the
neck

. Dr. Krouse ruled Hick s ’ s dea th a homicide

. E. The Investigation Officer Cassidy Tis chler with the FWPD t e st ified that when she arrived on the
scene at 1:29 a.m. , s h e obtaine d a des cri ption of the suspect ’ s vehic le

— a maroon four

- door Mercury

. Officer Tischler provided information about the vehicle to the
FWPD ’ s R e al

- Tim e C rime C ente r , whic h identified two ve h icles in the southside area matching th e vehicle ’ s d escription. After running the partial license plate information, only one of the two vehicles match ed both the v ehicle description and the p art ial6 license plate. Officer Tischler arrived at 2:00 a.m. a t the address connec ted to that
vehicle and saw a maroon vehicle parked in front of the home

. Detective Bruce Anderson with FWPD ’ s Speci al Response Team was ca lled
around 2 :00 or 3 :00 a.m. to guard a car that had been involved in a homicide. He

went t o a c ul

- de

- s ac and surveilled t he vehicle

. While he and his team were watching
the vehicle in the cul

- de

- sac, the patrol unit informed Detectiv e Anderson th at in the

n ext cul

- d e

- sac over, there was a black ma le who was wearing a white shirt an d re d
shorts. D e tective Ande rson walked around the cor ner and saw that the male was standing in front of the house that was directly behi nd the house that was bei ng survei ll ed. Detective Anderson described the individual as a medium

- skinned b lack
male who was five foot t en t o six feet tall and wh o was around thi rty to thirty

- five years old. Detective Anderson instructed two members of his team to g o ta lk to the

m ale. As the two team members turned the corner, the man took off runn ing and jumped a fence. The person was no t caught. Detective Anderson te stified that the

man looked vaguely like a man in a family p ort rait that was in th e entryway of the
home where the vehicle was being surveilled.
Office r Chri stopher Bain with FWPD ’ s crime scene search unit testified t hat
he had arrived at 2:02 a.m. and had photographed the crash site (outside the B all Corpo rati on p a r king lo t)

. Officer Bain also collected two shell casings and a live .9
mil l i meter bullet from the shooting scene (the corner of Joel East and W i ll R o ger s)

.7 He th en went to Badger ’ s home

. Offic er B ain t estified t hat a r ed vehicle with
lic ense p la te HRZ #### was parked at the home. Offic er Bain took pictures of the vehicle showing red stain s in the tire trea d and “ spatter ” along the underside of the
vehi c le. Insi de the hom e, Offi ce r Bain col l ected thr ee guns and almost 400 rounds of
ammunition. 3
Detective Ern est P ate with FWPD testified that he had arriv ed at the scene on Will Rogers Boulevard at 3: 00 a.m. and had noted a black Ford vehicle that was
resti ng a gainst a lamp pos t. The dr iver of the vehicle had already been transferred
from the scene via ambulance. Around 4 a.m., Detective Pate went to th e address associated with Badger ’ s license pla te and saw a red four

- door Mercury with an H and a Z in the lice nse plat e . He no ted that the vehicle appeared to have blood in t he w heel well and requested that
the vehicle be taken to the auto p ound

. 4 Detective Pa te knocked on the door and
received Badger ’ s wife ’ s consent to searc h the home. Badger was not in t he h ome. Detective Pate obtained surveillance vi deo from the guard shack at the Ben E.
Keith distribution center, but it wa s not of good quality , did not show the da te and

3 T he guns collec ted fr om th e home did not match the ballistics f rom the two casings and the live ca r tridge that were found at the s hooting scene.

4 Officer Timothy Lee with FWPD’s Crime Scene Search Unit testified that he went t o the crime scene bay at t he a uto pound tw o d a ys after th e incident. Off icer Lee noted that t he red Mercury’s right front wheel and back wheel on the passenger side contained red stains

. He took sample swabs of several places th at contained red stains, and using black finge rprint pow d er, he created a tread pat tern of the right side wheels.8 time, and did not show the two veh i cles inv olved. Detective Pat e was told that ther e

wa s video availab le showing the da te and time , but he was unable to obtain th at video after following up with the contact p erson several times. Detective Pate testified on

cro ss

- examinatio n t ha t he did not check with any of the owners of the surrounding
bu i ldings to see if they had surveillance cameras. Detective Pate spoke with several managers and with twenty to thirty employees at the distribution ce nter and rec eived no in fo rmati on that Hicks and Badger had any prior inci dents, arguments, or fights

. O n cr os s

- examination, the defense asked if Detective Pate had m ade any
mistakes in this investigation, and he replied, “ Sure. ” Detective Pate explained t ha t there were three witnesses

— Wisdo m, Barnes, and Mitchell

— and that his
underst anding was that all thr ee w itnesses had been interviewed when , in fact , only
two were interviewed. Detective Pate did not discover until he was preparing fo r t rial
that Wisdom had not been interview ed

. Detective Pate sai d that if he ha d the chance to redo this investigation, h e wo uld i nterview Wis dom

. But Detective Pate stated that
he “ 100 p ercent ” stood b eh ind the investiga ti on that he ha d done in this case and that interviewing Wisdom would not have c hanged the outcome of the case. Detective
Pate sa id that he would “ t ake th e fo rensic evidence o ver what anyone says any day
b ecause . . . people make mistakes. ”
Detec tive Pate testified that the steering wheel of the red Mercury wa s swabbed
and that the swab was sent for DNA testing but was not tested for gunshot res idue9 (GSR)

. Det ective Pate expl a ined tha t DNA evidence is stronger than GSR bec ause GSR can be picked up from an item other than a gun and becau se GSR is question ed
b y the Texas Forensic Commission whe reas DNA is not.
Detective Pate acknowledged that his supervisor d id n ot si gn off on Badger ’ s

arrest warrant
. On red irect, Detective Pate t estified that the a rrest warrant was signed by a judg e.
F
. Badger ’ s Arrest
After the arrest warrant was issued, FWPD O fficer Michae l Rue l as surveilled Badger ’ s wife but rarely saw h er a t hom e in the ev en ing s. O fficer Ruelas believ ed that
Bad g er ’ s wife was meeting Bad ger somewhere. Officer R uelas ultimately arrested Badger at a Motel 6 on South F reeway on April 25, 2017.
G . F o rensic Evidence John Wi tkowski , a fo re ns ic sc ientist wit h th e Tex a s De p artme nt of Public
S afety ’ s regional crim e lab , testified that he had compared rolled tire impressions from
the red Mercury to photographs of tire impressions that were left in blo od stains on
the roadway at the sce ne . After his analysis, Wi tkow ski conclud ed that [t

] he two partial overlapping tire impressions are similar in size and general trea d design to the test impressions from the right rear tire of the suspect ve hicle, and the second pa rtia l tire impression is s imilar to the right front tir e of the suspect vehic le.
I t is my opinion that these partial tire impressions could have been made by these tires from the suspect vehicle or any other tire with
a similar tread design.10 T risa C rutcher, a senior fo rensic scient ist with the FWPD crim e la b in the biology un it, testified that the partial DNA profile obtained from the swab of the red Mercury ’ s steering wheel was consistent with originati ng from Badger and that the DNA profile obtai ne d from t h e swab of t he red M e rcur y ’ s interior f ront rig ht w heel
well was ident ifi ed as originating from Hicks

. H. Trial O utcome
After hearing the above evidence, the jury foun d Badger guilty of murder as charged in the indi ctment.
I II
. Sufficie n t Evi dence Support s Badger ’ s Murder Conv iction
In his second p oint , Bad ger argues t hat the eviden ce is insufficient to s how that
he caused Hi cks ’ s death

. A. St andard of R ev iew Federal due process requires that the State prov e beyond a reason a ble doubt
every e lement of the crime charged. Jackso n v. Virg inia , 443 U.S . 30 7, 316, 99 S. Ct

. 2781, 2787 (1 979); see U.S. Const. amend. XI V. In our due

- process evi dentia ry

sufficie nc y review, we view all the evidence in the light most f avorab le to the verd ict
to determ ine whether an y rational factfinder could hav e foun d the c rime ’s essential
ele ments beyond a reasonable doubt. Jackson , 443 U.S. at 3 19, 99 S. Ct. at 2789; Queeman v. S tate , 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). T hi s stan dard give s ful l play to the factfinder’s responsibility to reso lve c onfl icts i n the t esti mony, to weigh t he11 evidence, an d to draw reasonable inferences from basi c facts to ultim ate fa cts. See J

ac

kson , 443 U.S. at 319, 99 S. Ct. at 2789; Queeman , 5 20 S.W.3 d at 622.
The factfinder al one judges the evidence’s weight and cred ibil ity. See Tex . Co de
Crim. Proc. A nn. art. 38.04 ; Queeman , 520 S.W.3d at 622 . T hus, when performing an

ev identi ary

- suffici en cy review, we may not re

- evaluate the evidence’s wei gh t and
credibili t y an d substitute our judgment f or the factfinder’s. Queem an , 520 S. W.3d at
622 . Instead, we d etermine whethe r the necessary inferences are reasonable based on
the ev idence ’s cumulati ve force when viewed in the light most favorable to th e verdic t. Murr a y v. State , 457 S. W.3d 446, 448 (Tex. Crim. App. 2015 ) ; se e Vil la v. State , 514 S.W.3d 227, 232 (Tex. Crim. App . 2017) (“The court conducting a suffici ency review m ust not e ngage in a ‘ d ivide and conquer’ strategy but must consider the

cum ul ative force of all t he evidence.” ). We must pr esume that the factfin der resol ved

an y confl icti ng inferences i n favor of the v erdict, and we must defer to th at resolu tion. Murray , 45 7 S.W .3d at 448

– 4 9

. Moreover, t he standard of review is the same for
d ir ect an d circum s tanti al evidence c ases; circumst antial evidence is as prob ative as di rect ev iden ce in establish ing guilt. Jenk ins v. State , 493 S.W.3d 583, 5 99 (Tex. Crim. App. 2016)

. B. The Law on M u rder A person commits murder if he intentionally or k no wingly causes t he de ath of
an ind ividual or int ends to cause serious bodi ly in jury a nd comm its an act clearly12 dangerous to hum an life that causes the death o f an indi vidual. Tex. Pen al Co de Ann. § 19

. 02(b)(1)

– (2). C. Analysis Badger does not challeng e th at Hic k s ’s death r esulted from being shot with a
firearm . Badg er instead ar gu es that the St a te did no t prove beyond a reaso nable
doubt that he was the shoo te r
. Badger focuses on the absence of (1) any eyewitness

tes timony tha t he had pointed a gun at Hicks, had pulled the trigger, and had killed
him ; (2) the murder weapon ; and (3) any ammuni tion in h is home that mat ched the
bullet s that had been used in the shooting

. A s set forth above , direct evidence i s not require d ; a conviction ma y be supported by ci rcumstantial evidence

. See Jenkins , 493
S.W.3d at 5 99 ( “ C ircumstantial evidence is as pr obat ive as direct evidence in establishing guilt, and circums tantial evidence alone can be sufficient. ” )

. Th us, th e absence o f the evidence spec if ied by Badger does n ot undermine his conviction. Badger also argues that the e yewitness testimony that was pr ovid ed was conflicting regarding the color of Badger ’ s vehicl e and the number of gunshots

. But

c onflic t ing evidence regarding th e number of gunshots a nd the co lo r of Badger ’ s vehicl e do es not render t he evide nce insufficient as we defer to the factfinder to

r esolve conflicts in testimony. 5 See i d.

5 W i thin the “ Statement of Facts ” in Badg er ’ s brief, he states that “ [Detective] Pate made numerous mistak es investigating this case

. ” Badger t hen goes on to state that Dete ctive Pate failed to (1) interview Wisdo m, (2) test the steering wheel in Badger ’ s vehicle for GSR, (3) inquire whether bui ldings near the shooting scene had13 Here, the eviden ce tending to prov e that Badger was the shooter is as follows:

• Hicks t old Valle when he ca me ho me for h is lunch that he was upset with a
coworker , a nd he returned to work against her request

.

• Hic ks a nd Badger worked at the same distri bution center and left the parking
lot at the distribution ce nter at the same time.

• Th er e was very little tr affic on Will Rogers Boulevard at that time of night , and
Barnes testified that she saw no other cars that ni ght.

• Approximat ely fi ve m inutes after Badger and Hicks left t he distribution center ’ s parki ng lot , Barnes saw two black men a rg uing besi de t heir v e hicles , which

were stopped on the road way not far from the distribution center

. Barnes
described the black m an w ho was next to the maroon Mercury or Taurus as short, a nd the record revealed that Badger was five f eet , four inches tall

. Barnes described th e black man who was near the black car as tall, and the

re c ord revealed that Hicks was six f eet, two inches t all or six f e et , three inches
tall.

surveilla nc e cameras, and (4) obtain his supervisor ’ s sig nature on t he arrest warr ant pur suant to department policy. B adge r does not rais e these arguments in his sufficiency argument. Even if his sufficiency argument ca n be broadly construe d as f

ai rly includ ing his challenges to the investigat ion conduct ed by Detective Pate, “ [o] ur r evi ew concerns the sufficiency of the evid ence presented at trial,

. . . rather than the sufficiency of the police i nvestigation, and we do not spec ulate about evidenc e [that] the State did not present. ” See Delbre y v. State , No s . 05

- 18

- 00790

- CR, 05

- 1 8

- 00 791

- CR , 2019 WL 3773851, at *4 (Tex. A pp.

— Dallas Aug. 12, 2019, no pet.) (mem. op., not d esignated for publication).14 • Moments a fter Barnes drov e past the two vehicles, she heard a gunshot and
saw the red veh ic le speed around the b lack vehicle. After the red vehicle caught up to her and pa ssed her, she saw that th e license plate contain ed a n H
and a Z.

• Barnes ’ s partial plate identification, combi ned with the vehicle log from the
distribution center and info rm ation ob tained from the R e al

- Time Crime Center, helped officers match the plat e to Badger ’ s red Mercury , which was found at his hom e.

• B adger ’ s vehicle ’ s interior front right wheel rim containe d blood that was
identified through DNA tes ting as originati ng from Hicks

.

• Comparisons o f the partial tire impressions that were l eft in the blood on the roadway to the kno wn impressions made by the tires on Badger ’ s vehicle did not rule out Badger ’ s vehic le as one t hat could have left the partial tire impressions on the roadway at the scene

.

• Less than t w o hours after the shooting , o fficers spotted a man w ho resembled Badger in the area near his h ome, but t he man ran when he saw police

. See Clayton v. S t ate , 235 S.W.3d 772, 78 0 (Tex. Crim. App. 2007) (“W e have recognized that a f actfi nder may draw an inf e r e nce of guilt from the circumstance of flight.”).15 • A lthough Badger ’ s wife and his ho me remaine d un der surveillance after that night , he was not seen at his home

. Badge r was ultimately apprehended at a
Motel 6 six days after the i ncident.
While each cir c umstance of gui lt considered in isola tion is insuffi cient to prove
that Badger was t he shooter, w hen all of the evidenc e is viewed in the light most
favorable to the verd ict and when the c umulative force of all the admitted evid en ce and rea so nable inferen c es that can be drawn therefrom are co nsidered , we co nclude
that the evidence i s suff icient to sh o w t hat Badger was the s hooter

. See Ingerson v. State , 5 5 9 S.W.3d 501, 51 1 (Tex. Crim. App. 2018) (holding circumstantial evidence

su fficient to i dentify appe l lant as the sho oter ); Clayton , 235 S. W.3d at 779

– 82 ( holding
that a rational juror c ould find be y ond a reasonable doubt that appellant was responsible for killing victim based on reasonabl e inferences from and c umulative
force o f the inc ri minating cir c umstantial evid ence presented). Acco rdingly, we hold
th at the evidence is sufficien t to support Bad ger ’ s conviction fo r murder. Se e Clayton , 235 S.W.3d at 782

. We overrule Bad ger ’ s seco nd point.
I V
. The Trial Court Did Not Ab use I ts Discretion by Deny i ng a Mistrial
In his first point, Badger argues that th e trial court abused its dis cretio n by denyi ng h is reque st for a mist rial when a juror allegedly failed to disclose a clos e relationship w ith “ a high

- ranking employee of the Ta rr ant County Crim inal D i strict Attorney ’ s office

. ”16 A . S ta ndard of Review
A tri al court ’ s de nial of a motion for m istrial is re v iewed under an abuse

- of

dis cretion standard. Coble v. State , 330 S. W. 3d 25 3, 292 (Tex. Crim. A p p. 2010 ).
U nder th is standard, w e will not dist u rb the trial court ’ s ruling if it was wit hin the
zone of reasonable d isagre ement
. Id

. Like wise, we review a t rial court ’ s determination concerning juror bias for an abuse of dis cr etion. Granados v. State , 8 5
S.W .3d 2 17, 23 6 (Tex. Crim. A p p. 2002).
B . Applicab le Law
This court has previously set forth the law regardin g the ri ght to an impartial ju ry: “In al l c r iminal prosecutions, the accused shall enjoy the rig ht to a speedy a nd public trial, by an impartial ju ry. ” U.S. Const. amend. V I; see also Tex. Const. art. 1 [ , ] § 1 0 ( [stating that] “[i] n all criminal prosecutions the ac cused shall have a spe edy publ ic t r ial by an impartial jury”); Franklin v. State , 138 S.W.3d 351, 354 ( F

ranklin I I

) (Tex. Crim. App. 2004). I nc luded in t he constit u tional right to an impartial jury i s the ability to condu ct adequate voir dire to ide ntify unqualified jurors. F

ran klin II , 1 38 S.W.3d at 354. The Texas Court of Criminal Appeals has “consiste n tly held that essential to the Sixth A me ndment gua rantees of the assistance of counsel and trial before an impartial j ury ‘is the right to questio n veni remembers in order to int ellig entl y exercise peremptory challenges and challenges for cause.’ ” Id. (qu o ting Raby v. S tate , 970 S.W.2d 1, 10 ( Te x. Crim. A pp. 1998))

. When a juror “ ‘withholds material information during th e voir dire process, the par ties a re denied the opportun ity to e xerc i se their challenges, thus hampering their selection of a disinterest e d and impartial j ury.’ ” Franklin II , 13 8 S.W.3d a t 354 (quo t ing Salazar v. State , 562 S.W.2d 48 0, 482 (Tex. Crim. App

. 1978)). Thus, the defenda nt “mu st show that the juror wi thhel d ma t erial information during voir dire, and the information is withheld d espite due diligence exercised by17 the de fendant.” Franklin I I

, 138 S.W.3d at 355

– 56. In order to show materiality, t he concealed information doe s not have to show actual bi as, just tha t it has a tendency to show bias. Id. at 356. “[M]ere familiarity wi t h a witness is not neces sarily materi al informatio n.” Fran k lin v. State , 12 S.W.3d 473, 478 ( F

ranklin I ) (Tex. Crim. App. 2000); see Decker v. S tate , 717 S.W.2d 903, 907 (T ex. Crim

. Ap p
. 1983). In the event that a juror withholds material information du r ing voir dire, it is not dispos itive of the issue if the ju r or states that it will not affect h is verdict. Franklin II , 138 S.W.3d at 355

– 56. T he goo d faith of the juror i s “l arge ly i r relevant when considering the materiality of information withheld.” F ranklin I , 12 S.W.3d at 478.
Th e bur de n is initia lly on th e parties to be diligent during voir dire and ask all pert inent questions to reveal po tentia l bias. Gonzales v. S tate , 3 S.W. 3 d 915, 917

– 18 (Tex. Crim. App. 1999).
Ne lson v. State , N os . 02

- 07

- 00 2 99

- CR , 02

- 07

- 00 300

- CR, 2009 WL 885914 , at *3

– 4 (Tex. App.

— For t Worth Apr. 2, 2009, no pet.) (m em. op., not designated f or publication )

. W ith regard to co unsel ’ s duty to be dil igent in e l ic it ing pertinent information from prospective jurors during voir dire i n an effort to uncover potenti al prej ud ice or ju ror bias, t h e T e xas Court of Criminal Appeals e xplained in Gonzales that
d efense counsel has an obli gation to ask questions calc ula ted to b ri ng out that information which might be said to indicate a juror ’ s ina b ilit y to be impartial, truthful, and th e like. Unless de fe n se counsel asks such questions, we must hold, as we do he re, that the purportedly mat erial information which a ju ror fai ls t o disclose is not really “withheld” so as to constitute misconduct whic h woul d warrant a reversal.
Counsel mu st ask specific qu es t ions, not rely on broad ones, to
sa tisfy this obligation. And counsel must ask follo w
- up q uestions after uncover ing pot enti al bias. We have consistently held there is no error where counsel has not met that obligation.18 3 S.W.3d at 9 17 ( cita t i ons omitted). The Gonz ales opinion went on to explain th at
counsel ’ s burden is not l ess ened wh en juror questionnaire s are ut iliz e d:
We see no reason why counsel ’ s burden to use diligence should be a n y le ss in the case of written jur or questionnaires. Parti c u larly because of the nature of writ ten questions, cou nsel should be sure to ask follo w
- up o r al questions concerni ng any i nfor m ati on on the form that counsel deems material. While a questionnaire may serve as an efficient vehicle f or collecting demograph i c data, it is not the most reliable way to collect oth er types of information. Counse l shou ld never assume that t he respo nden t s w ill understand each question as it was intended by counsel to be u n ders tood. As this case illustrat es , written questions are b y nature vulnerable to misinterpret ation

— even questio ns that appear to be subject to only o ne i nterpretation. Fo r this r easo n , “ diligent counsel” will not rely on written questionnaires to suppl y any information that counsel dee ms material. Counsel who d oes otherwise is simply not diligen t. Id.
C . What t he Record Sho ws Afte r the jury w as pic ked but before the pre sentatio n of evi dence, the t rial

court took up pending motions. The State t hen p ut the following on the reco rd : There was one issue t h a t came up late yesterday. We haven ’ t had a chance to tell defense about it, but we w anted to just put it on the record.
We f ou n d o ut yesterday well after 5:00 that one of the jurors is related t o the publi c relations spokespers on for the district attor n e y ’ s office. Ms. Jordan is the moth er of Samantha Jor dan, the dist rict attorney ’ s pub lic re lations person

. We fo und this out fr o m S amantha Jordan. As far as we know, there ha [ve] been no discussio n s bet wee n Ms. Jordan and her m ot her. There ha [ve] n ’ t be e n an y discussions between Juror Ms. Jorda n and the St ate; although, we d id run into h er in the19 ha llway, and that ’ s when it was d isco ver ed. We wanted to let the court kno w that as soon as possible.
Fo r the record, during voir di re , neither side asked the pane l at large if they knew anyone i n the district at torney ’ s office spe cifically. I think the q uestion is asked on th e jury qu esti onn aire generally of all of the panel if they know anyone in a law of f ice o r if they themselves a re a lawyer.
And several j ury members, some of which are on th e pan el, some of which aren ’ t, noted that they kn ew people in law enforcement. Sam antha Jor d an, wh o is employed by the district attorney ’ s office, is not an attorne y . Sh e is

-- I believe her ba ckground is in marketing , and she handles media and public re latio ns for the d istrict attorney, S haren Wilson. [DEFE NSE C OUNSEL] : Judge, certa inly, if I ha d k nown that a juror ’ s daughter work ed for the Tarrant County Distric t Atto rney ’ s Office, I would h ave either sought to str i ke h er for cause or certainly a pere mptor y challenge.
And she also had plenty of opp ortunity to say it, and she had pl enty of o ppor tun ity to put it on her questionnaire. I think the questionnaire is m a nife s tly

-- fairly would e li cit that answer, so I ha v e to object to the mother of a Tarran t Cou nty DA empl oyee sitting on a ju ry in this m urder case

. [T HE PROSE CUTOR]: If I may , Your Honor, just to clarify a little bit of the record, I don ’ t have the c o pies of my questionnaires
an ymore . . . . They ’ re un d er se al

. . . . I don ’ t recall what her answer was to any of the particular questions tha t dealt with if she knew someone in a law office

. I don ’ t know that it ’ s entirely fair to say that she had the oppor t unity to volunteer it beca us e neither side really as k ed he r if she knew anyone. In many courts here in Ta rrant County, other judges ask, before they h and voir dire over to the St a te, fo r anyone to have the opportunity to say if they know the ADAs who hav e been introdu ced, the defe ns e attorneys who have bee n intr oduced, the Judge, the bailiffs. Tha t wasn ’ t20 as ked of the panel. Maybe I shoul d incorporate that into my general voi r d i re, bu t I didn ’ t ask either and neither did the defense.
She did note othe r people that she was relat ed to. In fact, the State knew that she was the wife of a city counc ilman. We didn ’ t know that our colleague w as the daught er of a city councilma n, and we did n ’ t kno w that our colleague had someone serving jury duty because tha t hadn ’ t been discussed.
I don ’ t think that the re c ord w ould show that anything inappropriate happened. I mean, certainly, if something needs to be p ut on the record in re sp ect to that juror, if she ’ s here, that ’ s understandable. But I don ’ t think, as o f now, anything has risen to the level of it being i n approp riate.
B adge r ’ s counsel “ disag ree[d ] completely

. ” He moved for a mistria l and stated, “ I
think we have to p ick a ne w ju ry and then go forwar d

. ” But Badger did not as k to question Jorda n . The t rial cour t ultimately de n ied th e motion. After the trial co urt ruled, Badger put on the record the tw o questions f r om the juro r questionn aire that

w er e relevant to the i ssue at han d :
I ’ m looking at the questio nnaire for Juror Glenda Jordan. And , really, t here are two qu e stions that are at issue here. And I think , for appe llate purposes, if one of these questions does n ’ t app ly, surely the other one
w ou ld.
And that is question n umb er 18, “ Have you or someone close to yo u ever w orked as a police of ficer or in law enforcem e nt? I f yes, please describe. ” Her answer, “ No. ”
Nu mber 19, “ Have you or someone cl ose to you eve r worke d for a law fir m or privat e attorney? I f yes, please d esc ribe. ” The witness ’ s answer, “ No. ”21 D . Analysis
B ad ger ’ s argum ent on app eal is pre mised on his b elief that the question s on the
q uestionnaire constituted due dil igence on defe nse counsel ’ s part in asking questi ons that would have revealed Jordan ’ s al leged bias. Ba d g er ’ s argument pr es uppose s that

an av erage j uror wh o does not practice law would interpr et the te rm “ law
enforcement ” in question 18 and the ter ms “ a law firm or priv ate attorney ” in question 19 as includ ing someone who works for the Ta rran t County DA ’ s O ffice

. 6
But couns el cannot assume that pote n tial ju rors “ will under stand each questi on as it

was intended by counsel to be under stood. ” See id

. Here, neither ques tion 18 nor q uestion 19 on the juror questionnaire specifically asked whe ther the r e spondent knew or was rel at ed to an employee of th e Tarran t County DA ’ s O ffice

. And defense co unsel did not ask any oral questions
duri ng voir dire co ncernin g the venire me mbers ’ connec tions to employees of the Tarrant County DA ’ s O ffice. Becau se d efens e counsel did not f ollow u p on the written question n aires w ith more speci fic questioning during voir dire, Jordan did not
withhold materi al information. See id. at 918; Arms trong v. Stat e , 8 97 S.W.2d 361, 36 3

– 6 4 (Tex. Crim. App. 1995) ( concluding tha t no m aterial information was “ wi thheld ”

6 Badger relies heavil y on Franklin I , which held th at the information wit hheld from ap pellant b y the juror w as mat erial

. 12 S.W.3d at 476

– 79. In that cas e , the jurors were spe c ifi cally asked if they knew the witness C.N .T. , and no one in the
ve nire mentioned that they knew her

. Id. at 475. After C.N. T. took the witness st an d, a juror passed a n o te to the jud ge stating that she knew C .N.T

. I d. at 476. F rank lin I is therefore dis tinguishable on its facts because the juror gave an incorrect ans wer to a specific question about her knowl edge of wit ness C .N .T.22 because no one e ver ask ed the panelis ts if they knew or were acquainte d with the prosecutors) ; Chavez v. State , No. 05

- 17

- 00795

- CR, 2018 W L 2773259, at *2 (Tex. App.

— Dallas June 11, 2018, no pet. ) (mem. op. , no t des ignat e d for publication ) ( “ [N]o j uror with held informati o n becau se neither par ty asked the venire whe ther they knew appe llant. ” )

. Moreover, b ecause we concl ude that no material i nformation wa s withheld, we further conclude that Badger has not shown th at h e was deprived of an impartial ju r y or denied a fair tri a l as a result of any trial court error. Acc ordingly, we ho ld that the trial court di d not abuse its discretion by denying Bad ger ’ s mot ion for mistrial, and w e overrule Badger ’ s first point.
V. Modi fication to Judgment
As noted in a footnote in Bad ger ’ s brief, t he judgment i ncorrect l y refl ects that the jury , not the tria l court , assessed puni shment. An appellate court has the author ity to modify a judgment to make it spea k the tru th when it has the necess a ry infor mation to do so

. See Bigley v. State , 8 65 S.W .2d 26, 27

– 28 (T ex. Crim. App. 199 3 )

. E xercising our auth o rity to make the judgment speak the truth because we have the

necess ary information , w e modify the judgment in two pl ac es to reflec t th at the t rial

cou rt, not the jury, asse ss e d punishment. See id

. ; see also Teno rio v . State , No. 07

- 16

- 00278

- CR, 2017 WL 1373813, at *1 ( Tex. Ap p.

— Ama rillo Apr. 13, 2 017, no pet.) ( mem. op., not designate d for publica tion ) (modifying judgm en t t o reflect tha t the trial court, no t the jur y, assess e d punishment ).23 VI. Co nclusion Having ov erruled b oth of Ba dger ’ s p oints and having modified t h e judgme nt to reflect that the trial court assessed punish ment , we a ff irm as modified the trial co ur t ’ s judg ment. /s/ Dab ney Bassel
Dab ney Bassel Justice
Do No t Publish Tex. R. App. P. 47.2( b)
Delive red: October 10 , 2019