Jesus Avitia Terrazas v. the State of Texas

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________

No. 02-25-00159-CR
___________________________

JESUS AVITIA TERRAZAS, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 297th District Court
Tarrant County, Texas
Trial Court No. 1868277

Before Kerr, Birdwell, and Wallach, JJ.
Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION

Appellant Jesus Terrazas appeals his convictions for continuous sexual abuse of

a child under the age of fourteen and indecency with a child by exposure. See Tex.

Penal Code Ann. §§ 21.02(b), 21.11(d). In one issue, he argues that he “was denied a

fair and impartial jury” because, during voir dire, a juror had “failed to disclose that

she could not concentrate on the testimony due to her work schedule.” Because we

conclude that Terrazas was not deprived of an impartial jury or denied a fair trial, we

overrule his sole issue and—after correcting a judgment error—affirm the trial court’s

judgments as modified.

I. Background1

After the complainant outcried to her mother about Terrazas’s sexual abuse,

Terrazas was charged with one count of continuous sexual abuse of a child (Count 1),

two counts of aggravated sexual assault (Counts 2 and 3), two counts of indecency

with a child by contact (Counts 4 and 5), and one count of indecency with a child by

exposure (Count 6). Following a jury trial, the jury found Terrazas guilty of Counts 1

and 6. The jury assessed his punishment at confinement for life on Count 1 and at ten

years’ confinement on Count 6, and the trial court sentenced him accordingly.

Terrazas timely appealed.

1
Because Terrazas does not raise a sufficiency challenge, we forgo a detailed
factual background. There is no reason to lengthen this opinion with a description of
the acts of sexual abuse involved in the offenses for which Terrazas was convicted.

2
II. Standard of Review 2

We review a trial court’s denial of a motion for mistrial for an abuse of

discretion. Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010). Under this

standard, we will not disturb the trial court’s ruling if it was within the zone of

reasonable disagreement. Id.

III. Applicable Law

An accused in a criminal prosecution has the right to a fair trial by an impartial

jury. See Tex. Const. art. I, § 10. Included in this constitutional right is the ability to

conduct adequate voir dire to identify unqualified jurors. Franklin v. State, 138 S.W.3d

351, 354 (Tex. Crim. App. 2004). “The voir dire process is designed to insure, to the

fullest extent possible, that an intelligent, alert, disinterested and impartial jury will

perform the duty assigned to it.” Salazar v. State, 562 S.W.2d 480, 482 (Tex. Crim.

App. [Panel Op.] 1978); see Drake v. State, 465 S.W.3d 759, 764 (Tex. App.—Houston

[14th Dist.] 2015, no pet.) (“The purpose of the voir dire examination is to expose any

bias or interest of the prospective jurors which might prevent full consideration of the

evidence . . . .”). Essential to the voir dire process is the right to question venire

members to “intelligently exercise peremptory challenges and challenges for cause.”

Franklin, 138 S.W.3d at 354.

2
While Terrazas does not provide the appropriate—or any—standard of review
in either his opening brief or his reply brief, at trial, he challenged the juror’s ability to
serve on the jury by moving for a mistrial, and on appeal, he contends that he is
“entitled to a new trial.” We therefore apply the standard of review for a trial court’s
denial of a motion for mistrial.

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When a juror withholds material information during voir dire without fault or

lack of diligence by the complaining party, the parties are denied the opportunity to

exercise challenges, which hampers the selection of an impartial jury. Id. at 356–57;

Salazar, 562 S.W.2d at 482. “That a juror will state that the fact that he withheld

information will not affect his verdict is not dispositive of the issue where the

information is material and therefore likely to affect the juror’s verdict.” Salazar, 562

S.W.2d at 482. In such a situation, a mistrial may be appropriate. See Franklin, 138

S.W.3d at 353–54; see also Valle-Fernandez v. State, No. 02-24-00071-CR, 2025 WL

646632, at *6 (Tex. App.—Fort Worth Feb. 27, 2025, no pet.) (mem. op., not

designated for publication) (“When a person serves on a jury but is partial, biased, or

prejudiced and that juror is selected not through the fault or lack of diligence of

defense counsel but based on inaccurate answers in voir dire, a new trial can be

obtained.”). The burden is initially on the parties to be diligent during voir dire and

ask all pertinent questions to reveal potential bias. Gonzales v. State, 3 S.W.3d 915, 917–

18 (Tex. Crim. App. 1999).

To obtain reversal on an allegation that a juror withheld information during

voir dire, the withheld information must have been material. See Decker v. State, 717

S.W.2d 903, 907–08 (Tex. Crim. App. 1986) (op. on reh’g) (emphasizing materiality

requirement); Salazar, 562 S.W.2d at 482 n.5 (clarifying that an appellant is not

“entitled to a reversal of his conviction in any case in which he discovers that a juror

withheld information during voir dire”). A trial court does not err by denying a

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motion for mistrial when the withheld information is not material and the record does

not show that the defendant was deprived of an impartial jury or denied a fair trial.

Decker, 717 S.W.2d at 907–08; see Badger v. State, No. 02-18-00475-CR, 2019 WL

5089761, at *9 (Tex. App.—Fort Worth Oct. 10, 2019, pet. ref’d) (mem. op., not

designated for publication) (“[B]ecause we conclude that no material information was

withheld, we further conclude that [appellant] has not shown that he was deprived of

an impartial jury or denied a fair trial as a result of any trial court error.”); LeMaster v.

State, No. 04-14-00344-CR, 2015 WL 1640275, at *3 (Tex. App.—San Antonio Apr.

8, 2015, pet. ref’d) (mem. op., not designated for publication) (“[W]e hold [that] the

trial court could have determined, in its discretion, the information withheld was not

material, and therefore [appellant] was not deprived of his right to an impartial jury or

a fair trial.”); cf. Alexander v. State, No. 02-09-00405-CR, 2010 WL 4138561, at *1 (Tex.

App.—Fort Worth Oct. 21, 2010, pet. ref’d) (mem. op., not designated for

publication) (“When the withheld information is material, it is constitutional error to

deny a motion for mistrial . . . .”).

To determine materiality, we evaluate whether the withheld information would

have suggested that the juror harbored a bias or prejudice to such a degree that she

should have been excused from jury service. Sypert v. State, 196 S.W.3d 896, 900 (Tex.

App.—Texarkana 2006, pet. ref’d); see Decker, 717 S.W.2d at 907 (concluding that

withheld information was not material when there was no showing that it “had any

potential for prejudice or bias”); Ford v. State, 129 S.W.3d 541, 547 (Tex. App.—Dallas

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2003, pet. ref’d) (noting that “[i]t is not the mere failure to disclose information that

warrants a new trial” but “the chance that a biased individual came to serve [on the

jury] through silence or deception”). The withheld information need not show “actual

bias; just that it has a tendency to show bias.” Franklin, 138 S.W.3d at 356. If the

withheld information touches on a fundamental component of the charged offense or

a personal characteristic of the defendant, then the withheld information was material

to voir dire’s objective of eliciting a venire member’s potential bias or prejudice. Sypert,

196 S.W.3d at 901 (providing examples of material information).

IV. Discussion

Terrazas contends that he was “denied a fair and impartial jury” because during

voir dire, a juror—A. Affleck—withheld material information about her inability to

concentrate on the evidence due to her “scheduling conflict.” According to Terrazas,

had Affleck disclosed this information, he would have used one of his peremptory

challenges to strike her. He argues that he is entitled to a new trial because he was

“prejudiced” by Affleck’s failure to disclose the information.

A. The Relevant Record

During voir dire, Terrazas asked the venire members about scheduling conflicts

that would interfere with their ability to serve on the jury. Multiple venire members

indicated that they would likely have conflicts with their work schedules. Juror Affleck

did not voice any scheduling conflicts at that time.

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At the end of voir dire, twelve jurors and one alternate were selected and

sworn. After the jury was sworn, Affleck notified the bailiff that she was a hospice

nurse, that she worked overnight shifts, and that she usually slept during the day.

During pretrial matters the next morning, another juror was excused without

objection due to illness, and the alternate took her place. The trial court then relayed

to the parties what Affleck had shared with the bailiff about her work schedule.

Terrazas asked the trial court to inquire as to whether Affleck had worked the

previous night. Affleck told the trial court that she had worked the previous night and

had slept for only three hours, that she was scheduled to work each night that week,

and that she could not miss work because she provided end-of-life care to a patient

who could “pass at any time.” The trial court asked Affleck if she could uphold her

oath to listen to the case and render a verdict on the law and evidence, and she

responded that she would “try.”

Terrazas requested that Affleck be excused from the jury, arguing that she was

unable to serve—as opposed to disqualified or exempt—due to her “sleep

deprivation.” After a brief recess, the trial court offered to modify the trial schedule to

allow Affleck to “get some sleep.” It asked Affleck if the modification would allow

her to fully participate and “give this case the time and attention it deserve[d].”

Affleck again stated that she would try. Looking for a more “confident” assurance

that she could “give the State and [Terrazas] a fair trial,” the trial court asked Affleck

if, for at least that day, she could “give this case the time and attention it needed”

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from 10:15 a.m. until 3:00 p.m. Affleck stated that she could, and the trial court

instructed her to tell the bailiff if she had any issues paying attention.

Terrazas then took Affleck on voir dire. In response to Terrazas’s questioning,

Affleck indicated that she did not think that Terrazas would get a fair trial from her

because her patient was her priority. The trial court asked Affleck to clarify what she

meant by that, and she stated that her mind was “in other places.” The trial court

assured Affleck that it was not asking her to “forget about” her “life outside th[e]

courtroom” but that “ultimately, the question [wa]s, c[ould she] listen to the evidence

and return a verdict based on the law and the evidence?” Affleck answered, “Yes.”

Despite Affleck’s answer, Terrazas re-urged his argument that Affleck was

unable to uphold her duties as a juror. He also requested a mistrial “because there

[wa]s no available alternative juror to step in” and Affleck was “disabled.” He then

asserted that, had he heard the information about Affleck’s schedule during voir dire,

he would have “let her go” and used one of his strikes against her. The trial court

found that Affleck had “not reached the level of disability” and allowed her to

continue serving on the jury.

During the first day of trial, Terrazas informed the trial court that Affleck had

been falling asleep during a witness’s testimony. The trial court asked the bailiff to

check in with Affleck to ensure that she had been listening to the testimony and to

make sure that she could continue for the rest of the day. Terrazas again moved for a

mistrial based on Affleck’s inability to perform her duties, and the trial court took it

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under advisement, indicating that it would “keep[] a close eye on” Affleck. At the

close of testimony that day, the trial court offered—for the second time—to modify

the trial schedule to accommodate Affleck’s work and sleep, and she asserted that it

would be best to start in the morning.

Terrazas took Affleck on another voir dire and asked her if she had fallen

asleep at any point during the testimony that day. Affleck stated that she had laid her

head in her hand but had not fallen asleep. Terrazas asked Affleck if her mental state

or sleep deprivation had impacted her ability to listen to the evidence or had

influenced her ability to render a verdict, and she answered, “No.” The trial court

then noted that Terrazas’s mistrial motion was still under advisement and instructed

everyone to return the next morning at 8:30 a.m.

Affleck sat through two more days of trial testimony without any further issues,

concerns, objections, or motions regarding her ability to pay attention and listen to

the evidence. At the charge conference, however, Terrazas stated that he still had an

“ongoing concern” that Affleck had not been “forthcoming with her ability to pay

attention to the evidence, based on her physical demeanor and appearance.” Terrazas

urged his motion for mistrial based on this “ongoing concern” of Affleck’s “ability to

pay attention, listen to the evidence, . . . actively engage in deliberation,” and render a

“true verdict.”

The trial court denied Terrazas’s motion for mistrial. Explaining its reasoning,

it stated that it

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accepts [Affleck’s] representations that she’s been able to listen to the
evidence. The first day, we did break early, but she represented to the
[c]ourt that she heard all of the evidence. The jury has been instructed
each time they come into the courtroom to notify the [c]ourt or the
bailiffs if at any point they need a break or need any accommodations to
help them in focusing. We have been taking breaks and finished early
yesterday in order to ensure that she could listen to the evidence, and she
has given the [c]ourt confidence that she can follow her oath.

After the trial court denied his motion, Terrazas noted that, had he had the

information regarding Affleck’s schedule prior to the jury’s being sworn, either

Affleck would have been excused or he would have used one of his peremptory

strikes against her, and a different panel would have been seated.

B. Analysis

While Affleck may not have disclosed the information about her work schedule

during voir dire, the information was not material. The fact that Affleck worked

overnight providing hospice care to a patient who could “pass at any time” did not

suggest that she was biased or prejudiced against Terrazas, nor did the fact that she

had slept for only three hours the night before the first day of trial. Affleck’s alleged

scheduling conflict did not touch on the charged offenses—continuous sexual abuse

of a child under the age of fourteen and indecency with a child by exposure—or on

any personal characteristic of Terrazas, and it had no connection to any of the

witnesses, attorneys, or court staff involved in this case.

Affleck’s alleged scheduling conflict did not have even a tendency to show bias;

thus, the information was not material. See Decker, 717 S.W.2d at 907 (concluding that

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withheld information was not material because it did not show potential for bias or

prejudice); Alexander, 2010 WL 4138561, at *1, *2 (overruling appellant’s contentions

that a juror withheld material information during voir dire and that it “affected his

opportunity to intelligently exercise his peremptory challenges”; nothing in the record

showed that the information revealed a potential bias or prejudice); Ford, 129 S.W.3d

at 549 (“[T]he information was not ‘material’ because it was not of the type

‘suggesting potential for bias or prejudice.’”); cf. Franklin, 138 S.W.3d at 352, 355

(holding that withheld information was material when juror revealed that she was the

child-sexual-assault victim’s Girl Scout troop leader and that her daughter was in the

same Girl Scout troop as the victim); Salazar, 562 S.W.2d at 482–83 (holding that

withheld information was material because defendant was a Mexican-American male

charged with indecency with a child and juror failed to disclose that he had witnessed

the sexual assault of his daughter by a Mexican-American male and had testified at the

trial for that sexual assault); Araujo v. State, No. 13-12-00042-CR, 2013 WL 2146818,

at *4 (Tex. App.—Corpus Christi–Edinburg May 16, 2013, no pet.) (mem. op., not

designated for publication) (concluding that withheld information—that juror was

related to a State’s witness and that the witness had shared facts about the case with

him—was material); Sypert, 196 S.W.3d at 901 (concluding, in robbery case, that

juror’s withholding information that his brother had previously been robbed was

material and directly impacted appellant’s right to an impartial jury).

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Terrazas contends that “the question of bias is irrelevant.” He asserts that he

“is not alleging bias” but that he “had concerns over [Affleck’s] ability to pay

attention[,] which is of paramount importance in evaluating prospective jurors.” But

the question of bias is precisely what we must evaluate when determining whether the

withheld information was material. See Franklin, 138 S.W.3d at 356; Decker, 717 S.W.2d

at 907; Sypert, 196 S.W.3d at 900; Ford, 129 S.W.3d at 547. Terrazas cites no case law—

and we have found none—that would permit us to replace that materiality standard

with one in which the withheld information need merely raise concerns over a juror’s

ability to pay attention.3 Cf. Hogue v. State, 629 S.W.3d 731, 734 (Tex. App.—

Beaumont 2021, no pet.) (“[N]either the text of the Sixth Amendment, nor the text of

Article I, section 10 of the Texas Constitution, create rights allowing defendants to

have jurors with perfect hearing or to have jurors who remain alert and attentive

throughout trial.”). And he otherwise fails to support his conclusory assertion that an

alleged scheduling conflict constitutes material information that, when withheld

during voir dire, warrants a new trial.

Because the information about Affleck’s schedule was not material, the record

does not show that Terrazas was deprived of an impartial jury or denied a fair trial. See

3
To the extent that Terrazas attempts to conflate the materiality determination
with a harm analysis, see Tex. R. App. P. 44.2(a); Franklin, 138 S.W.3d at 355, because
we conclude that the information was not material, we do not reach a harm analysis.
See Sypert, 196 S.W.3d at 900 (“[I]f a situation arises where material information was
withheld . . . , and if the appellant’s subsequent motion for mistrial is denied, on
appeal the denial of that motion will be reviewed for constitutional error.”); see also
Tex. R. App. P. 47.1.

12
Decker, 717 S.W.2d at 907–08; Badger, 2019 WL 5089761, at *9; LeMaster; 2015 WL

1640275, at *3; cf. Salazar, 562 S.W.2d at 482 (holding that trial court erred by not

granting mistrial “when it became known that the information withheld by the juror

was material”). Accordingly, we hold that the trial court did not abuse its discretion by

denying Terrazas’s motion for mistrial. We overrule Terrazas’s sole issue.

C. Judgment Error

The trial court’s judgment on Count 1 contains an error in its recitation of

Terrazas’s punishment. We have the authority to correct errors in a judgment to make

the judgment comport with the trial court record. See French v. State, 830 S.W.2d 607,

609 (Tex. Crim. App. 1992); Ette v. State, 551 S.W.3d 783, 792 (Tex. App.—Fort

Worth 2017), aff’d, 559 S.W.3d 511 (Tex. Crim. App. 2018). This authority is not

dependent upon the request of any party, nor is it dependent upon whether the party

preserved error in the trial court. Ette, 551 S.W.3d at 792.

Here, the jury’s verdict and the trial court’s oral pronouncement of Terrazas’s

punishment on Count 1 were for a sentence of “life.” But the judgment lists

Terrazas’s punishment incorrectly as “life without parole.” See Tex. Penal Code Ann.

§ 21.02(h) (“An offense under this section is a felony of the first degree, punishable by

imprisonment . . . for life, or for any term of not more than 99 years or less than 25

years.”); Colburn v. State, 966 S.W.2d 511, 516 (Tex. Crim. App. 1998) (“[A] life

sentence does not mean life without parole.”); Smith v. State, No. 14-24-00149-CR,

2026 WL 468007, at *5 (Tex. App.—Houston [14th Dist.] Feb. 19, 2026, pet. filed)

13
(modifying judgment by deleting “without parole” to reflect jury’s verdict of “life” for

continuous-sexual-abuse-of-a-child conviction); Sosa v. State, No. 05-19-00868-CR,

2021 WL 1084639, at *6–7 (Tex. App.—Dallas Mar. 22, 2021, pet. ref’d) (mem. op.,

not designated for publication) (similar).

We note that Terrazas is ineligible for parole because he is serving a sentence

for continuous sexual abuse of a child. See Tex. Gov’t Code Ann. § 508.145(a)(2)

(providing that an inmate is not eligible for release on parole if serving a sentence for

an offense under Section 21.02). Nevertheless, the judgment’s recitation of Terrazas’s

punishment is incorrect because the jury did not assess his punishment at “life

without parole” and such punishment is not authorized by the Texas Penal Code. See

Tex. Penal Code Ann. § 21.02(h); see, e.g., Smith, 2026 WL 468007, at *5 (citing cases

holding the same and also explaining that, while parole is not available for the offense

of continuous sexual abuse of a child because of applicable parole laws, the Texas

Penal Code does not authorize life without parole as a sentence for this offense); see

also Tex. Penal Code Ann. § 12.31(a)(2) (authorizing sentence of life without parole

for certain capital-felony convictions), § 12.42(c)(4) (describing conditions for life-

without-parole sentence for certain habitual offenders), § 71.02(b)(1) (describing when

life-without-parole sentence is authorized for organized crimes).

Accordingly, we modify the trial court’s judgment on Count 1 to reflect the

jury’s verdict and the trial court’s pronouncement by striking the phrase “without

parole” from the judgment’s recitation of Terrazas’s punishment.

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V. Conclusion

We affirm the Count 6 judgment as is, modify the Count 1 judgment by

deleting the phrase “without parole” under “Punishment and Place of Confinement,”

and affirm that judgment as modified.

/s/ Wade Birdwell

Wade Birdwell
Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: April 30, 2026

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