OPINION Appellant, Wautash Grillett, appeals his conviction of sexual assault of a child in violation of Texas Penal Code § 22.011(a)(2)(A). A jury found Appellant guilty and assessed his punishment as imprisonment for seven years. Finding no error, we affirm. BACKGROUND Factual Background On January 1, 2016, while his wife was out of the house, Appellant sat next to his fifteen- year-old stepdaughter on the couch, took her shorts off, and placed his hands and mouth on her vagina. The girl testified at trial as follows: Q. After your mom leaves, what are you and Mr. Wautash doing in the living room, the first floor? A. I am sitting on the couch. He is actually laying down on the couch. His head is actually on my lap. . . . Q. What is he doing when he is laying on the couch, he is laying down on your lap? What happens next? A. I guess for a while we’re just watching a movie. And then he starts messing with the buttons on my jeans, on my shorts, my jean shorts or whatever. . . . Q. Okay. And did you tell him to stop? A. No. I kind of froze. Q. You froze? A. Yeah. I didn’t say anything, just like stared at the movie. Q. So the movie was still going? A. Yes. Q. Was he able to take off the button? A. Yes. Q. What does he do next? A. He then – - he then pulls down both my shorts and my panties. . . . Q. What does he do after that? A. He starts putting his hands and his mouth on my privates and vagina. Q. He starts putting his hands. Did he – - what do you mean by that? How does he do that? A. I don’t know. He just starts putting his mouth and his hands, like, on it and inside. Q. Inside of your privates? A. Yes. . . . Q. Did you feel his fingers inside you? A. Yes. Procedural Background The jury indicted Appellant on April 19, 2017, in a two count indictment. The first count alleged a violation of Texas Penal Code § 22.011(a)(2)(A) by “intentionally or knowingly caus[ing] the penetration of the sexual organ of [L.G.], a child who was then and there younger than 17 years of age” with his finger. The second count charged Appellant with violating Texas Penal Code § 22.011(a)(2)(C) by “intentionally or knowingly caus[ing] the sexual organ of [L.G.], a child who was then and there younger than 17 years of age, to contact the mouth of the defendant.” Voir Dire Jury selection began on October 28, 2019. During voir dire the trial court explained to the venire panel to be qualified to sit on the jury they had to be a citizen of the United States, a resident of the State of Texas, and a resident of El Paso County. Maria Fernandez Estrada (Estrada), a venire member, did not speak up when the trial court asked if there was anybody present who felt they might not be qualified. The trial court also asked the venire panel if anybody would like to be excused from jury duty because of an illness preventing them from giving the trial proper attention. Zulema Jamis, a venire member, did not disclose to the trial judge she would like to be excused because of a health issue. During the State’s voir dire, the prosecuting attorney asked the venire panel whether anyone would have religious or moral issues sitting in judgment of another human being. Laura Batoon, a venire member, who ultimately would be seated on the jury, raised her hand. Batoon clarified her answer during individual voir dire by disclosing she was concerned with judging the case correctly but she thought she could fairly judge the case. Defense counsel asked the venire panel if anyone believed children do not lie about important things. Several members of the venire panel raised their hands including Estrada, Batoon, Michael Jordan, and Alejandro Chacon. Appellant challenged each member of the venire panel who indicated they would automatically believe a child witness as implicitly biased against him. The trial court denied Appellant’s challenge for cause. The jury—which was empaneled after each attorney used their allotted peremptory strikes—consisted of twelve jurors and two alternates. Estrada, Jamis, and Batoon were sworn in as members of the jury. Jordan and Chacon were designated as the two alternates. Estrada cried after learning she was a member of the jury. First Day of Trial Estrada approached the trial court on the first day of trial, before the jury was sworn in. She explained to the trial judge she was emotional because she did not think she could handle the case. Further, she stated she had already made up her mind and she was a citizen of New Mexico. Jamis also approached the trial court prior to the jury was sworn indicating she had a medical issue that would prevent her from sitting on the jury. The trial court excused Estrada because as a citizen of another state she was not qualified to sit on a Texas jury. It also excused Jamis because of a medical disability. The trial court explained to the remaining jury, which now included Jordan and Chacon, why Estrada and Jamis had been excused. It instructed the jury the issues with Estrada and Jamis were not part of the evidence and should not have any impact on the trial. Each juror affirmatively stated the issues with Estrada and Jamis would not impact how they evaluated the case. Then, the jury was sworn in. Appellant moved for a mistrial arguing Estrada and Jamis withheld information during voir dire about their qualifications to serve on the jury. He also moved for a mistrial claiming Estrada’s “emotional outburst” tainted the remaining jury members against him. The trial court denied Appellant’s motion. After hearing the evidence, the jury returned a guilty verdict as to count one of the indictment, but did not reach a verdict on count two. Appellant was sentenced to seven years imprisonment and a $10,000.00 fine. This appeal followed. DISCUSSION Issues Appellant raises thirteen issues on appeal of his conviction of sexual assault of a child. His first twelve issues allege error in the composition of the jury. Issue Thirteen claims the evidence at trial was legally and factually insufficient to support the guilty verdict. Errors in Jury Selection Appellant contends in Issues One through Six, the trial court erred when it failed to grant his motion for a mistrial based on the misconduct of Estrada and Jamis. Appellant argues in Issues Seven through Eleven, the trial court erred in not granting his challenges for cause of Batoon, Estrada, Jordan, and Chacon. In Issue Twelve, Appellant claims the trial court erred by not granting a mistrial due to the cumulative effect of the errors identified in Issues One through Eleven. Finding no error in the jury selection process, we overrule Appellant’s first twelve issues. Motion for Mistrial In his first five issues, Appellant asserts the trial court should have granted his motion for a mistrial because he was denied a fair and impartial jury when Estrada (1) withheld material information about her bias against Appellant, (2) withheld information she was not a resident of the State of Texas, (3) withheld information she was not a resident of El Paso County, (4) withheld information she was not a U.S. Citizen, and (5) had an emotional outburst in front of the jury. He maintains in his sixth issue he was denied a fair and impartial jury when Jamis withheld information about her medical condition which rendered her incapable of sitting on the jury. Standard of Review A mistrial is an appropriate remedy in “extreme circumstances” for a narrow class of highly prejudicial and incurable errors. Ocon v. State, 284 S.W.3d 880, 884 (Tex.Crim.App. 2009). A mistrial stops trial proceedings because the error is so prejudicial that expenditure of more time would be wasteful. Id. A trial court’s denial of a motion for a mistrial is reviewed for an abuse of discretion and must be upheld if it was within the zone of reasonable disagreement. Coble v. State, 330 S.W.3d 253, 292 (Tex.Crim.App. 2010). An appellate court views the evidence in the light most favorable to the trial court’s ruling. Ocon, 284 S.W.3d at 884. Juror Withholding of Information Appellant claims in Issues One, Two, Three, and Six, the trial court erred in not granting his motion for a mistrial when Estrada and Jamis were excused from jury service on the first day of trial. Specifically, he claims Estrada withheld information during voir dire regarding her bias against Appellant and her qualifications to serve on a jury in El Paso County. He further asserts Jamis withheld information during voir dire regarding her medical ability to serve on a jury. In support, Appellant cites to a line of Texas cases in which a reviewing court reversed a conviction after determining a sitting juror withheld material information during voir dire. See Von January v. State, 576 S.W.2d 43, 45-46 (Tex.Crim.App. Panel Op. 1978)(holding a defendant was entitled to a new trial when the jury foreman failed to answer a question posed by defense counsel during voir dire as to whether any prospective juror knew members of the deceased’s family when jury foreman knew the family well); Salazar v. State, 562 S.W.2d 480, 481-83 (Tex.Crim.App. Panel Op. 1978) (holding a defendant was entitled to a new trial when a juror failed to disclose during voir dire he had witnessed a sexual assault on his own daughter five years earlier and had testified at the trial); State v. Read, 965 S.W.2d 74, 76-78 (Tex.App.—Austin 1998, no pet.)(affirming trial court’s grant of a new trial where a juror withheld information about her criminal history). All these cases, however, involve misconduct by a sitting juror. Estrada and Jamis were both excused from jury service before the jury was sworn and never sat on the jury. Estrada and Jamis were never formally seated on the jury. Consequently, the line of cases cited by Appellant are inapplicable. Texas Code of Criminal Procedure Article 35.03(1) gives a trial court broad discretion to excuse perspective jurors for lack of qualification or for good reason at any time up to the point at which jury has been sworn in as a whole and formally impaneled. Fuentes v. State, 991 S.W.2d 267, 277-78 (Tex.Crim.App. 1999). Estrada and Jamis were both excused before the jury was sworn in and formally seated. As a result, the trial court did not error in excusing Estrada and Jamis. We, therefore, overule Appellant’s first, second, third, and sixth issues. The record in this case does not support Appellant’s contention Estrada is not a United States Citizen. Consequently, his fourth issue is overruled. Emotional Outburst Appellant argues in Issue Five, he should have been granted a mistrial after Estrada “had an emotional outburst in front of the impaneled jury.” Specifically, he claims there is a reasonable probability “a young girl, just like the alleged victim, is bawling and crying over the circumstances of this trial” interfered with the jury’s verdict. The Court of Criminal Appeals has held an outburst by a bystander or witness that interferes with the normal proceedings of a trial will not result in reversible error unless the defendant shows a reasonable probability exists the conduct interfered with the jury’s verdict. Gamboa v. State, 296 S.W.3d 574, 579 (Tex.Crim.App. 2009); Coble, 330 S.W.3d at 292. A trial judge’s instructions to disregard are generally considered sufficient to cure the impropriety because it is presumed the jury will follow those instructions. Id. Our review of the record does not indicate a reasonable probability Estrada’s emotional reaction interfered with the jury’s verdict. The trial court instructed the jury her emotional reaction was not evidence and could not be considered in the trial. Each remaining juror was polled and agreed Estrada’s conduct would not impact how they evaluated the case. We presume the jury followed these instructions. Consequently, Issue Five is overruled. Challenges for Cause Appellant claims in Issues Seven, Eight, Nine, Ten, and Eleven, the trial court abused its discretion when it denied his challenges for cause of Batoon, Estrada, Jordan, and Chacon. He claims Batoon should have been struck for cause because she raised her hand during voir dire when asked if she would have a moral or religious issue sitting in judgment of another person. In addition, he claims Batoon, Estrada, Jordan, and Chacon should have been struck for cause because they affirmatively agreed children would not lie about important things. To preserve error for a trial court’s erroneous denial of a challenge for cause, an appellant must show (1) he asserted a clear and specific challenge for cause, (2) he used a peremptory challenge on the complained-of venire member, (3) he used all of his allotted peremptory challenges, (4) his request for additional peremptory challenges was denied, and (5) an objectionable juror sat on the jury. Davis v. State, 329 S.W.3d 798, 807 (Tex.Crim.App. 2010); Newbury v. State, 135 S.W.3d 22, 30-31 (Tex.Crim.App. 2004). Appellant did not preserve error with respect to his challenge for cause of Batoon, Estrada, Jordan, or Chacon because he failed to show he was forced to use a peremptory strike for anyone of them. Consequently, Issues Seven, Eight, Nine, Ten, and Eleven are overruled.[1] Cumulative Error In Issue Twelve, Appellant asserts the trial court erred when it did not grant his motion for mistrial based on the cumulative effect of the errors in Issues One through Eleven. We have held “multiple errors may be harmful in their cumulating effect on the defense even if each error would be harmless standing on its own.” Castruita v. State, 584 S.W.3d 88, 114 (Tex.App.—El Paso 2018, pet. ref’d). There can be no cumulative error, however, if the individual claims of error lack merit. Id. Because we find no merit to Appellant’s first eleven issues, we are bound to overrule Issue Twelve. Sufficiency of the Evidence The jury convicted Appellant of “intentionally or knowingly caus[ing] the penetration of the sexual organ of [L.G.], a child who was then and there younger than 17 years of age” with his finger. TEX.PENAL CODE ANN. § 22.011(a)(2)(A). Appellant maintains, in his thirteenth issue, the evidence offered at trial was insufficient to prove Appellant penetrated L.G.’s sexual organ with his finger. We find based on the trial evidence a rational trier of fact could have found Appellant penetrated L.G.’s sexual organ. The standard of review for determining the legal sufficiency of the evidence to support a conviction is whether, after viewing all of the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Villa v. State, 514 S.W.3d 227, 232 (Tex.Crim.App. 2017). This standard requires the appellate court to defer to the responsibility of the trier of fact to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Id. Under this standard, evidence may be legally insufficient only when the record contains either no evidence of an essential element, merely a modicum of evidence of one element, or if it conclusively establishes a reasonable doubt. Queeman v. State, 520 S.W.3d 616, 622 (Tex.Crim.App. 2017). To find Appellant guilty of count one, the jury must find he knowingly or intentionally caused the penetration of a child’s sexual organ with his finger. TEX.PENAL CODE ANN. § 22.011(a)(2)(A). Appellant only challenges the sufficiency of the evidence regarding penetration. The Court of Criminal Appeals has defined penetration within this context as occurring if the touching is “more intrusive than contact with [the victim's] outer vaginal lips.” Vernon v. State, 841 S.W.2d 407, 409 (Tex.Crim.App. 1992). L.G. testified at trial Appellant put his hands “on it and inside” her vagina. And she responded “yes” when the prosecutor asked her if she felt his fingers insider of her. Her testimony alone is sufficient to allow a reasonable trier of fact to determine Appellant penetrated L.G.’s vagina. As a result, Appellant’s Issue Thirteen is overruled. CONCLUSION For these reasons, we affirm. March 18, 2022 YVONNE T. RODRIGUEZ, Chief Justice Before Rodriguez, C.J., Alley, J., and Marion, C.J. (Ret.) Marion, C.J. (Ret.)(Sitting by Assignment) (Do Not Publish)
