Howard Larson Wampler, Jr. v. State , 2015 Tex. App. LEXIS 10155 ( 2015 )

Opinion filed September 30, 2015
In The
Eleventh Court of Appeals
__________
No. 11-13-00374-CR
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HOWARD LARSON WAMPLER, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 90th District Court
Stephens County, Texas
Trial Court Cause No. F33837
OPINION
The jury found Howard Larson Wampler, Jr. guilty of the second-degree
felony offense of indecency with a child by contact and found one enhancement
“true.” TEX. PENAL CODE ANN. § 21.11(a)(1), (d) (West 2011). The jury assessed
his punishment at confinement for life. See PENAL § 12.42(c)(2) (West Supp. 2014).
The trial court sentenced him accordingly. Appellant asserts two issues on appeal.
We affirm.
I. Background Facts
Appellant does not challenge the sufficiency of the evidence, so we only
outline those facts relevant to his appeal. At the end of the State’s voir dire, the
prosecutor began an explanation of the goals of the criminal justice system. She
explained the following:
Okay. I like to ask juries this: It’s a philosophical question, and
there’s no right or wrong answer. And this is the last question I’m going
to ask you and then I’ll let [defense counsel] talk to you. I’m sorry if
I’ve been long-winded. This is an important case.
I’m going to go row by row, and I just want you to think about
it, but in our system, with our criminal justice system, a lot of people
think that punishment is a better goal than rehabilitation. Some people
think that you’re likely to deter or prevent crime if you have high
penalties and do punishment for the people that commit these crimes.
A lot of people on the other hand think that rehabilitation is the way to
go; that if you focus on the offender, on the defendants in these cases,
and provide them help that that is more likely to prevent crime than the
punishment regime.
At the end of this explanation, the State asked this question:
So I’m going to go through and which way do you lean. And not
middle ground, but are you more of a punishment, do you believe more
in the punishment theory, or more in the rehabilitation theory?
The State asked five veniremen this question, and all five answered. The sixth
venireman, however, stated that he could not answer the question without first
hearing the case. When the State pressed the venireman for an answer, Appellant
objected to the question and claimed it was an impermissible commitment question.
The trial court overruled Appellant’s objection and then instructed the State to move
on if the venireman did not have a clear viewpoint.
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II. Analysis
Appellant contends that the trial court abused its discretion when it overruled
his objection to the State’s question because the question (1) was an improper
commitment question and (2) was calculated to appeal to community prejudice. A
trial court has wide discretion in its control of voir dire. Barajas v. State, 93 S.W.3d
36, 38 (Tex. Crim. App. 2002); Shipley v. State, 790 S.W.2d 604, 608 (Tex. Crim.
App. 1990). We review the ruling of the trial court on an allegedly improper
commitment question during voir dire for an abuse of discretion. Standefer v. State,
59 S.W.3d 177, 179 (Tex. Crim. App. 2001); Atkins v. State, 951 S.W.2d 787, 790
(Tex. Crim. App. 1997).
A. Issue One: Commitment Question
“[L]itigants are given ‘broader latitude’ . . . to inquire ‘into a prospective
juror’s general philosophical outlook on the justice system’” when they conduct voir
dire. Vrba v. State, 151 S.W.3d 676, 678 (Tex. App.—Waco 2004, pet. ref’d)
(quoting Sells v. State, 121 S.W.3d 748, 756 n.22 (Tex. Crim. App. 2003)). A
question is proper if it seeks to discover a juror’s views on an issue applicable to the
case. Shipley, 790 S.W.2d at 608. But litigants may not ask commitment questions.
Standefer, 59 S.W.3d at 179. A commitment question is a voir dire question that
seeks to “commit a prospective juror to resolve, or to refrain from resolving, an issue
a certain way after learning a particular fact.” Id.
A party must make a timely, specific objection at the earliest possible
opportunity in order to preserve error that a voir dire question was improper. Ross v.
State, 154 S.W.3d 804, 807 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d);
accord Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991). If one
venireman answered an allegedly improper question, and the defendant failed to
object, then the defendant’s argument is waived. See Montgomery v. State, 198
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S.W.3d 67, 74 (Tex. App.—Fort Worth 2006, pet. ref’d). In addition, if a party asks
an improper commitment question, that error may be waived if a timely objection is
not made. See Phillips v. State, No. 05-08-01654-CR, 2010 WL 297942, at *1 (Tex.
App.—Dallas Jan. 27, 2010, pet. ref’d) (not designated for publication) (determining
that the error was not a fundamental error); see also Scott v. State, No. 07-12-00375-
CR, 2013 WL 4528821, at *1 (Tex. App.—Amarillo Aug. 26, 2013, no pet.) (mem.
op., not designated for publication). Here, five veniremen answered the allegedly
improper question before Appellant objected. Thus, Appellant failed to timely
object, and he has waived this complaint on appeal. See TEX. R. APP. P. 33.1(a);
Montgomery, 198 S.W.3d at 74; Ross, 154 S.W.3d at 807. We overrule Appellant’s
first issue.
B. Issue Two: Fundamental Error - Community Prejudice
Appellant contends that the State’s commitment question also was improper
because it “was calculated to appeal to community prejudice which could only be
satisfied by a finding of guilt.” Appellant argues the “rehabilitation versus
punishment” question constituted fundamental error because rehabilitation was not
an option in this case. In addition, Appellant argues that the question impermissibly
undermined his constitutionally protected presumption of innocence. Contentions
that the State asked an improper question in voir dire, as we previously explained,
require a timely objection from the defendant to preserve error. See Scott, 2013 WL
4528821, at *1; Huff v. State, No. 07-10-00174-CR, 2010 WL 4828491, at *2 (Tex.
App.—Amarillo Nov. 29, 2010, no pet.) (mem. op., not designated for publication).
Appellant cites no case that held that a voir dire question appealing to community
prejudice constituted fundamental error, and this court has not found one. We have
found several cases that hold that appeals to community prejudice, in closing
arguments before a jury, are waived if the defendant does not timely object to the
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improper argument. See, e.g., Trevino v. State, No. 09-13-00075-CR, 2014
WL 5370663, at *7–8 (Tex. App.—Beaumont Oct. 22, 2014, pet. ref’d) (mem. op.);
Garcia v. State, No. 04-96-00982-CR, 1997 WL 731969, at *1–2 (Tex. App.—San
Antonio Nov. 26, 1997, pet. ref’d) (not designated for publication). Appellant failed
to timely object to the State’s question. We disagree with Appellant’s assertion that
the State’s question affected the presumption of innocence, and we cannot hold that
the trial court committed fundamental error when it permitted the prosecutor to ask
the complained-of question during voir dire. We overrule Appellant’s second issue.
III. This Court’s Ruling
We affirm the judgment of the trial court.
MIKE WILLSON
JUSTICE
September 30, 2015
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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