Risener v. State

SHAWN DOUGLAS RISENER, Appellant, v. THE STATE OF TEXAS, Appellee.

NUMBER 13-20-00080-CR

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

April 22, 2021

On appeal from the 19th District Court of of McLennan County, Texas.

MEMORANDUM OPINION

Before Justices Benavides, Hinojosa, and Silva

Memorandum Opinion by Justice Silva

Appellant Shawn Douglas Risener appeals his conviction of six counts of indecency with a child by contact, a second-degree felony.¹ See TEX. PENAL CODE ANN.§ 21.11. By what we construe as two issues, Risener argues the trial court erred in denying his (1) challenges for cause during jury selection and (2) motion for new trial. We affirm.

I. BACKGROUND

In October 2017, Risener was indicted on all six counts. The offenses were alleged to have occurred between 1994 and 1996. He pleaded not guilty and proceeded to trial.

A. Voir Dire

During voir dire, the trial court explained the range of punishment for indecency with a child as charged and the requirement that all jurors must be able to consider the full range of punishment. See id. § 12.33(a) (providing that the punishment for an individual adjudged guilty of a second-degree felony is "imprisonment in the Texas Department of Criminal Justice for any term of not more than 20 years or less than 2 years"). Only nine venire members indicated that they could not consider the full range of punishment. When the State proposed the same question, ten venire members indicated they could not. Defense counsel then asked whether the panel members could "honestly give fair consideration to a sentence as low as two years and recommend probation?" Unlike the trial court and State, the defense counsel asked each individual venire member to answer either "Yes" or "No" to the question. Forty-four out of sixty-two members of the panel responded, "No." Defense counsel did not seek any elaboration.

The State then requested and was granted an opportunity to rehabilitate the panel. Following a reiteration of the full range of punishment, the State asked the panel whether they could "consider probation when . . . considering the offense of Indecency with a Child by Contact?" Like defense counsel, the State asked each individual venire member torespond in "Yes" or "No" format. Several venire members, including members fifteen, seventeen, twenty, twenty-three, twenty-five, thirty-three, thirty-four, thirty-six, forty-one, forty-three, forty-seven, and fifty-seven changed their response to "Yes."

The State and Risener jointly agreed to strike twenty-five venire members for cause. Risener also argued that twelve venire members that changed their responses—numbers fifteen, seventeen, twenty, twenty-three, twenty-five, thirty-three, thirty-four, thirty-six, forty-one, forty-three, forty-seven, and fifty-seven—should be struck for cause, and the trial court granted Risener's request only as to venire member fifteen. Risener thereafter requested twelve more peremptory challenges, and the trial court granted four. Risener used all of his allotted peremptory challenges, but an allegedly objectionable juror was nonetheless seated: number seventeen.

B. Trial

On December 23, 2016, the superintendent of the Irving Independent School District (IISD) received an email from an individual identified as Steven Bowen. Juan Carlos Martinez, IISD Deputy Superintendent, testified that Bowen alleged that the school district was employing an individual "accused of sex crimes against children." IISD referred the allegations to law enforcement.

Rose Peterson, a detective with the McLennan County Sheriff's Office, testified she contacted the complainant, Bowen, who stated he had been sexually abused by Risener between 1994 and 1996 at his childhood friend Brendan Wallace's home. As part of her investigation, Peterson contacted two members of Risener's former church, James Crouch and Bruce Bailey, after learning that Risener had read a letter confessing his actions to the congregation several years prior. Peterson testified, "[Crouch and Bailey]corroborated everything that [the complainant] had told me." Peterson also spoke to Risener, who "adamantly denied that anything had occurred" but confirmed he had been living with the Wallace family at the time of the allegations and recognized the complainant.

Sandra Wallace testified that Risener, her nephew, came to live with them in June 1994. Risener was in graduate school at the time. Wallace confirmed Bowen would often come over to their home because he was good friends with her son, Brendan. Wallace stated she "didn't know anything" about the allegations involving Risener and Bowen.

Crouch and Bailey, two senior members of a church Risener and Bowen attended in their youth, testified that they had been approached by Bowen's parents regarding allegations of sexual abuse involving Risener in 2013. Crouch testified that, at that point, the family did not want to "press[] charges." Rather, the family wanted to make Risener's actions "known to the church." Crouch said Risener eventually provided a public statement to the congregation:

As best I can remember, the statement was to the effect that several years ago—many years ago—I—I can't remember if the date was given or not—that he had had a homosexual contact with another individual as a minor and that that had involved touching. It had involved maybe some explicit videos and that he wanted that known to the congregation.

Crouch clarified that although "[i]t was clearly understood that [Bowen] was a minor" and Risener had been an adult when the contact occurred, Crouch had not realized there was a nine-year age difference between Bowen and Risener. Crouch testified that he was unaware that he was legally obligated to contact law enforcement.

Bowen, thirty-nine years old at trial and no longer residing in-state, testified that he was between fourteen and sixteen when the offenses occurred at the Wallace home.Bowen said that Brendan was his best friend growing up, and he would often spend the night at his residence. Bowen stated the boys would sometimes sleep in Risener's bedroom, and he described multiple instances where Risener would "kick[] Brendan out of the room and lock[] the door." What began as tickling, escalated to touching under the clothes. Bowen testified that Risener touched his genitals and made him reciprocate. Risener also put his penis in Bowen's mouth.

Micah McKamie, a childhood friend of Bowen and Brendan, also testified that he had been sexually abused by Risener as a child during a church camp retreat and while at sleepovers at the Wallace residence. McKamie testified he was between twelve and fourteen years old when Risener touched McKamie's penis and "put his penis in my mouth."

The jury returned a guilty verdict, and Risener was sentenced to eight years in prison on all six counts, which the trial court ordered to run consecutively.²

C. Motion for New Trial

In a motion for new trial, Risener argued the State had intentionally withheld evidence of Brendan's statements, which were favorable to the defense. The attached affidavit, written and signed by Risener's trial counsel, stated that he had overheard the State speaking with a juror after Risener's case concluded. The affidavit stated that the State told the juror that Brendan "remembered nothing of the 'dozens' of assaults alleged to have been committed by the Defendant," and that is why Brendan had not been called as a witness at trial. Risener's trial counsel stated he contacted Brendan, who said "that he told [the State] that he did not remember any of the incidents that [Bowen] described."

At a hearing on Risener's motion, the State argued, in relevant part, that (1) Risener was aware of Brendan's existence as a possible witness because his name was included in the offense reports, and Brendan was listed on the State's potential witness list; and (2) the fact that a member from the State's office had spoken to Brendan and Brendan had stated he could not recall what occurred twenty years prior was not information the State had an obligation to disclose to Risener.

At the hearing on Risener's motion, Risener admitted an affidavit from Brendan, which stated:

Approximately a year ago, I was contacted by a woman who identified herself as a prosecutor in the case involving Shawn Douglas Risener. I told her that I had no recollection of any acts of impropriety between Shawn Risener and Steven Bowen.

I received another telephone message from the McLennan County District Attorney's office a few weeks before Thanksgiving 2019, but I did not return the phone call.

I did not receive a subpoena to testify in the trial of Shawn Risener, but, if I had, [I] would have testified that [I] do not remember being locked out of Shawn Risener's bedroom on any occasion when Steven Bowen spent the night at our home in McLennan County.

The trial court denied Risener's motion for new trial. This appeal followed.

II. CHALLENGES FOR CAUSE

Risener first argues that the trial court abused its discretion in denying his challenges for cause for eleven venire members: seventeen, twenty, twenty-three, twenty-five, thirty-three, thirty-four, thirty-six, forty-one, forty-three, forty-seven, and fifty-seven.

A. Standard of Review and Applicable Law

"We review a trial court's ruling on a challenge for cause with considerable deference because the trial judge is in the best position to evaluate a venire member's demeanor and responses." Tracy v. State, 597 S.W.3d 502, 512 (Tex. Crim. App. 2020). "When a venire member's answers in voir dire are ambiguous, vacillating, unclear, or contradictory, particular deference is given to the trial court's decision." Id. We review the entire record to determine whether there is "sufficient evidence to support the trial court's ruling." Id. "A trial judge's ruling on a challenge for cause may be reversed only for a clear abuse of discretion." Id.; see Jacobs v. State, 560 S.W.3d 205, 211 (Tex. Crim. App. 2018).

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