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Click here for the full text of this decision FACTS:Samuel Allen Webb was the campus director of a state-licensed residential facility for emotionally troubled children. The complainant was a resident of the facility. Although Webb denied that he had engaged in sexual activity with the complainant, a grand jury indicted him for sexual assault of a child on Nov. 1, 2001. Webb’s trial began almost two years later on Aug. 25, 2003. During voir dire, defense counsel asked the jury panel if any of the panel members had “heard anyone discuss this case or someone say they thought they knew what the facts of the case might be?” None of the prospective jurors responded. After the jury returned a guilty verdict, but before the sentence was assessed, one of the jurors revealed that she had also served on the grand jury that indicted Webb. Webb filed a motion for mistrial and a motion for new trial based in part on the juror’s service on both the grand jury and the trial jury. At a hearing on the motions, the juror testified that all she remembered from the grand jury was Webb’s name and the charges that were filed. She stated that she did not remember if any testimony or written documents were presented to the grand jury. She also did not remember the panel being asked during voir dire whether any of them had ever heard the facts of the case discussed. She stated that she did not know that she could not sit on both the grand jury and the trial jury, and she had not mentioned her service on the grand jury to any of the other jurors during deliberations. Webb’s motion for mistrial and motion for new trial also alleged that the prosecutor failed to inform him that the complainant might file a civil suit against him. At the hearing on the motions, the prosecutor testified that before the trial she received a phone call from the attorney who was representing the complainant. The attorney mentioned the possibility of filing a suit against Webb, but the prosecutor asked that the attorney not file suit at that time, because it would interfere with the criminal trial. Accordingly, complainant’s attorney said he would wait to file the civil suit until after Webb’s trial. The trial court denied the motions for mistrial, finding that although the state had knowledge that probably should have been disclosed to the defense out of an abundance of caution, there was no harm in not informing the defendant of the potential that a suit would be filed. Additionally, the court found that the juror who served on both the grand jury and the trial jury had no actual facts about the case actively in her mind and no harm could have come from her service on both juries. The 3rd Court of Appeals affirmed the judgment of the trial court. Addressing the prior grand jury service by a juror, the 3rd Court held that because Webb failed to diligently press the statutory inquiries as to the grounds for challenge, he gave up the right to complain that the juror was disqualified. HOLDING:Affirmed. Texas Code of Criminal Procedure Art. 35.16(a)(7), the CCA stated, makes it a ground for a challenge for cause if a panelist served on the grand jury which returned the indictment. It is not an absolute disqualification, because all grounds for challenge for cause may be forfeited. For example, the CCA noted, the appellant in Self v. State, a 1898 CCA case, insisted that he used due diligence to discover the prior service during voir dire by asking the prospective juror if he had formed an opinion in the case. Since the juror replied that he had not, the appellant in Selfdid not inquire any further, because, based on this answer, he assumed that he did not sit on the grand jury. The CCA stated in Selfthat the question presented was one of diligence in discovering the cause of challenge and determined that if the appellant failed in the exercise of this diligence, then he could not complain that the juror had not been excused. In addition, the CCA noted, the judge heard testimony from the juror and determined that she did not remember any facts or evidence that may have been presented to the grand jury and she was not biased against Webb. The trial judge believed this testimony, and the court found that the judge’s ruling was not arbitrary, unreasonable or outside the zone of reasonable disagreement. Thus, the court found no indication that the juror’s prior service on the grand jury deprived Webb of a fair and impartial jury. Next, the court examined whether the state’s failure to disclose the complainants plans to file a civil suit amounted to a withholding of exculpatory evidence. Under the 1963 U.S. Supreme Court case Maryland v. Brady, the defendant bears the burden of showing that in light of all the evidence, it was reasonably probable that the outcome of the trial would have been different had the prosecutor made a timely disclosure. The mere possibility, the CCA stated, that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish materiality in the constitutional sense. In light of all the evidence presented against Webb and the abundant impeachment evidence that Webb offered against the complainant, the CCA found the additional evidence that the complainant was considering filing suit immaterial under Brady. OPINION:Meyers, J., delivered the opinion of the court, in which Keller, P.J., and Price, Womack, Keasler, Hervey and Cochran, JJ., joined. DISSENT:Holcomb, J., filed a dissenting opinion, in which Johnson, J., joined. “I respectfully dissent. I would hold that the trial court abused its discretion in denying appellant’s motions for mistrial and new trial, and that the court of appeals erred in holding otherwise.”

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