Randy Lerma v. State ( 2012 )

Opinion issued December 28, 2012.
In The
Court of Appeals
For The
First District of Texas
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NOS. 01-11-01020-CR, 01-11-01021-CR
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RANDY LERMA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 149th District Court
Brazoria County, Texas
Trial Court Case No. 62565
MEMORANDUM OPINION
A jury found appellant, Randy Lerma, guilty of the offenses of sexual
assault of a child1 and indecency with a child by contact.2 The jury assessed his
punishment for each offense at confinement for 15 years, and the trial court
ordered the sentences to run concurrently. In his sole point of error, appellant
contends that the trial court erred in denying him the right to ask the venire panel a
question concerning the imposition of the maximum punishment allowed.
We affirm.
Background
The complainant testified that in September 2009, appellant initiated a
relationship with her by texting to her the word “hey.” The complainant was 14
years old at the time, and she responded to the text message even though she did
not know the sender. The relationship developed into daily text messaging, and,
after about one week, appellant asked the complainant to send him photographs of
her, with and without clothing.
The complainant, who told appellant that she was only 14, eventually sent
appellant photographs of herself wearing only a bra and panties. Appellant
1
See TEX. PENAL CODE ANN. § 22.011 (West 2011); trial court cause no. 62565;
appellate cause no. 01-11-01020-CR.
2
See TEX. PENAL CODE ANN. § 21.11 (West 2011); trial court cause no. 62565;
appellate cause no. 01-11-01021-CR.
2
responded that she looked “hot” and sent her a photograph of his erect penis.
Appellant asked for photographs of her breasts and vagina, and the complainant
eventually sent appellant the requested photographs. Appellant then told her that
he would like to touch those parts of her body “one day.”
In December 2009, appellant drove to the complainant’s neighborhood in
Pearland, Texas from his home in the Lubbock, Texas area. The two met on a
sidewalk, and appellant gave the complainant gifts, including candy, shirts and
energy drinks. Appellant and the complainant talked for about 20 minutes, and
then appellant hugged her and left.
The relationship continued long distance with text messages and emails,
with appellant and the complainant sending photographs to each other. They
eventually met again in San Marcos, Texas when the complainant was there for her
sister’s softball tournament. By this time, the complainant had turned 15 years old.
The two met for about 20 minutes at a mall, and they went to a Cavender’s store
where appellant bought the complainant some shirts. Appellant and the
complainant met later at the softball tournament where appellant kissed her. The
two continued to text and send photographs to each other during this time in San
Marcos. The complainant sent appellant a video of herself masturbating, and
appellant responded that he “wanted to do that” to the complainant.
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A few days later, on May 22, 2010, appellant met with the complainant at
Independence Park in Pearland. The two rode in appellant’s car to a secluded
place near a wooded area. Appellant, after parking his car, used a sun visor to
cover the front windshield even though it was evening. Appellant then kissed the
complainant, took off her shorts and panties, touched her vagina, and performed
oral sex on her until she told him to stop. Appellant put his finger in the
complainant’s vagina, and the complainant took a photograph with her cellular
telephone and sent the photograph to him. When appellant asked to see her
breasts, the complainant complied, and he touched them. Appellant then showed
the complainant his penis and asked her if she wanted to have sex with him. After
the complainant said “no,” appellant drove the complainant back to the park and
told her that he loved her before driving away.
Subsequently when the complainant became upset, her sister heard her
crying and told their parents that something was wrong. The parents then alerted
law enforcement. Appellant later admitted to Pearland Police Department
Detective Cecil Arnold that he had placed his finger in the complainant’s vagina
and touched her breasts with his hand. Appellant also admitted to sending nude
photographs of himself to the complainant and receiving photographs of her nude.
Appellant further admitted to Detective Arnold that he knew the complainant was
15 years old.
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Voir Dire
In his sole point of error, appellant argues that the trial court erred in
denying him the right to question the venire panel “on punishment in violation of
his constitutional right to an impartial jury” because he was unable to determine if
any venire members would only consider the maximum sentence of 20 years.
Questions during voir dire are proper if they seek to discover a juror’s views
on an issue applicable to the case. Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim.
App. 2002). Voir dire examination permits the parties to assess the desirability of
prospective jurors and to select a “competent, fair, impartial, and unprejudiced
jury[.]” Staley v. State, 887 S.W.2d 885, 896 (Tex. Crim. App. 1994) (citation
omitted). Because a trial court has broad discretion over the process of selecting a
jury, an appellate court should not disturb a trial court’s ruling on the propriety of a
particular question during voir dire absent an abuse of discretion. Barajas, 93
S.W.3d at 38. A trial court abuses its discretion when it prohibits a proper question
about a proper area of inquiry. Id.
During voir dire, the following exchange took place:
[APPELLANT’S ATTORNEY]: There are some things that I
think we need to really discuss,
some of which we’ve already
gone over, Mr. Dornburg went
over, Judge Holder has gone
over. Mr. Dornburg talked to
you about the range of
punishment in this case. In
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each count, what we call a
count when it’s a sexual
assault, carries a penalty range
of between 2 and 20 years and a
fine. The indecency also
carries the same range of
punishment, between 2 and 20
years and a fine. Now, I
believe that – I believe that
somebody said that, and maybe
it was you, sir, that you said
you couldn’t – that 2 years, no
matter what the situation, was
just not going to happen.
[VENIRE PERSON NO. 34]: Not if it’s in the affirmative, no.
...
[APPELLANT’S ATTORNEY]: Let me ask it this way: Any of
you feel like that if Mr. Lerma
is found guilty, that he deserves
20 years? Flat out, 20 years, no
ifs ands or buts?
[STATE’S ATTORNEY]: Your Honor, I’m going to
object to that on the grounds
it’s a commitment question.
[THE COURT]: Sustained.
[APPELLANT’S ATTORNEY]: Do you feel like – do each of
you feel like if you’re chosen to
sit on this jury and consider
punishment, that you could
consider the full range of
punishment, anywhere between
2 and 20 years?
Let me ask it a little differently
than we asked – and Mr.
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Edington responded, that he
couldn’t give anything but – he
could not give two years no
matter what. Are there any of
you that feel that you – that you
could not consider two years
based on the facts – and I know
we’re kind of dividing hairs. I
don’t mean to – but depending
on the evidence that was before
you.
No. 23, Mr. – I apologize. My
notes are all out of order here.
I’m sorry. I know that you
stated, Mr. Smith, that you’re a
former police officer.
[VENIRE PERSON NO. 12]: Yes sir.
Appellant’s attorney then went on to ask venire person number 12 about his status
as a police officer and the potential bias of any members of the venire who were
members of law enforcement.
An attorney may not “attempt to bind or commit a venire member to a
verdict based on a hypothetical set of facts.” Lydia v. State, 109 S.W.3d 495, 497
(Tex. Crim. App. 2003). “Commitment questions are those that commit a
prospective juror to resolve, or to refrain from resolving, an issue a certain way
after learning a particular fact.” Standefer v. State, 59 S.W.3d 177, 179 (Tex.
Crim. App. 2001). While these types of questions generally “elicit a ‘yes’ or ‘no’
answer, an open-ended question can be a commitment question if the question asks
the prospective juror to set the hypothetical parameters for his decision-making.”
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Id. at 180. Commitment questions that attempt to bind prospective jurors to a
position, using a hypothetical or otherwise, are improper and “serve no purpose
other than to commit the jury to a specific set of facts before the presentation of
any evidence at trial.” Lydia, 109 S.W.3d at 497.
Appellant argues that his question to the venire did not set forth particular
facts asking the venire to resolve or refrain from resolving an issue under those
facts. We conclude that appellant’s question, as stated, was not a commitment
question because it contained no hypothetical facts or evidence other than stating
appellant’s name and asking, were he found guilty, whether anyone on the jury
venire would only be able to assess the maximum punishment of 20 years. See
Standefer, 59 S.W.3d at 179. The question did not ask the venire to resolve or
refrain from resolving an issue, i.e., the maximum punishment, based on a fact in
the case. See id. And both the State and appellant were entitled to jurors who
could consider the entire range of punishment. Cardenas v. State, 325 S.W.3d 179,
184 (Tex. Crim. App. 2010).
Assuming without deciding that appellant has preserved error, we hold that
any error from the trial court’s refusal to allow appellant’s punishment question
was harmless. See TEX. R. APP. P. 44.2. Appellant asserts that he was unable to
“fully explore[] the bias of the venire, potentially allow[ing] a bias[ed] juror to
influence the sentence.” However, he does not further address the issue other than
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noting that he received a sentence of confinement for 15 years, 75 percent of the
maximum punishment allowed. Moreover, we note that appellant was able to
obtain the same information as to whether members of the venire would only
consider the maximum punishment by asking whether members of the venire could
consider the entire range of punishment. None of the members of the venire
responded that they could not consider the entire range of punishment. And
appellant did not receive the maximum punishment.
We overrule appellant’s sole issue.
Conclusion
We affirm the judgments of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Higley and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).
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