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Price v. State

Court of Appeals of Texas, Sixth District, Texarkana

December 9, 2019

WILLIE DEE PRICE, Appellant
v.
THE STATE OF TEXAS, Appellee

          Date Submitted: December 5, 2019

          On Appeal from the 336th District Court Fannin County, Texas Trial Court No. CR-19-26942

          Before Morriss, C.J., Burgess and Stevens, JJ.

          OPINION

          Ralph K. Burgess Justice.

         A Fannin County jury found Willie Dee Price guilty of aggravated sexual assault of Tammy, a child, and sentenced him to life imprisonment.[1] On appeal, Price argues that the trial court erred in failing to excuse veniremembers who could not consider the full range of punishment and in allowing the State to admit extraneous-offense evidence.[2]

         We find that Price failed to preserve his first issue for our review. We also find that the trial court did not abuse its discretion by admitting the extraneous-offense evidence. As a result, we affirm the trial court's judgment.

         I. Price Failed to Preserve His First Point of Error

         Price argues that the trial court erred in failing to grant his challenges for cause to veniremembers who answered that they could not consider the minimum punishment for "the worst child sexual assault case [they could] imagine."[3] In total, veniremembers 15, 17, 18, 23, 27, 29, 30, 34, 35, 39, and 49 said that they could not assess the minimum sentence for "the worst child sexual assault case" they could "personally imagine." While several of these veniremembers were struck for cause by agreement, Price challenged the six remaining veniremembers for cause because they could not consider the full range of punishment in the "worst case" scenario. Price used his peremptory challenges to strike those six jurors and asked for additional peremptory strikes. In his first point of error, he argues that the trial court erred in refusing his challenges for cause.

[e]rror is preserved for review . . . only if appellant (1) used all of his peremptory strikes, (2) asked for and was refused additional peremptory strikes, and (3) was then forced to take an identified objectionable juror whom appellant would not otherwise have accepted had the trial court granted his challenge for cause (or granted him additional peremptory strikes so that he might strike the juror).

Buntion v. State, 482 S.W.3d 58, 83 (Tex. Crim. App. 2016). Although Price established the first two requirements of error preservation, he failed to establish the third. Price requested additional peremptory strikes but only indicated that he would use one strike on veniremember 49, who was not seated on the jury.[4] Because Price failed to specifically identify any other veniremembers he wished to strike, the record fails to show that Price was forced to accept an objectional juror. As a result, error is not preserved.

         We overrule Price's first point of error.

         II. The Trial Court Did Not Abuse Its Discretion by Admitting Extraneous-Offense Evidence

         In his second point of error, Price argues that the trial court erred in admitting extraneous-offense testimony from four other witnesses who said Price sexually abused them when they were children. We disagree.

         A. Factual and Procedural Background

         The evidence at trial showed that Price sexually assaulted a family member, Tammy, when she was a child. Tammy testified that Price had "rubb[ed] his penis with [her] vagina" several times when she was approximately four or five years old and discussed other sexually abusive acts committed by Price against her. Tammy kept Price's acts secret until she made a delayed outcry ...


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