Loredo v. State

159 S.W.3d 920 · Court of Criminal Appeals of Texas · 2004

Facts

The defendant was charged with aggravated sexual assault of a child. During voir dire, potential jurors were questioned about their ability to consider probation for such an offense. Venire member Band initially indicated by her silence that she could consider probation. However, when questioned individually by defense counsel, Band stated that she could not consider probation as an option if the defendant were convicted of aggravated sexual assault.

Procedural history

The trial court denied the appellant's challenge for cause against venire member Band and subsequently denied an additional peremptory strike. The appellant appealed this decision. The Court of Appeals reversed the trial court, finding that the appellant had preserved the error. The State then filed a petition for discretionary review, which this court granted.

Issue

Did the Court of Appeals err by finding that the appellant preserved error regarding the denial of a challenge for cause, despite the appellant's failure to correct the trial court's erroneous factual recollection that formed the basis of its ruling?

Holding

The Court of Appeals erred in finding that the appellant preserved error. The appellant failed to preserve error by not correcting the trial court's erroneous factual statement regarding the venire member's rehabilitation, even when invited to do so.

Rule

Error preservation requires that a complaint be made to the trial court at a time and in a manner that allows for correction, as per Texas Rule of Appellate Procedure 33.1. When a trial court explicitly states an erroneous factual recollection as the basis for its ruling and invites correction, a party's silence or failure to correct that error results in a failure to preserve the complaint for appellate review. This is because the trial court must be given the opportunity to make an error-free ruling based on accurate facts. The burden is on the party to show the trial court that its challenge should have been granted by correcting any factual inaccuracies.

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