Thompson, Byron v. State ( 2002 )

Opinion issued December 5, 2002  

      In The

Court of Appeals

For The

First District of Texas

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  NO. 01-99-01381-CR

NO. 01-99-01382-CR

NO. 01-99-01383-CR

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  BYRON THOMPSON, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause Nos. 800503, 800505, 800504

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O P I N I O N

          A jury found appellant, Byron Thompson, guilty of first-degree felony injury to a child, third-degree felony injury to a child, and second-degree felony aggravated assault. The jury assessed punishment at 40, two, and 15 years in prison and fines of $4,000, $2,000, and $4,000, respectively. We address whether the trial court erred in (1) overruling appellant’s objections to the State’s misstatement of the law during voir dire, (2) overruling appellant’s challenges for cause, (3) refusing to allow appellant to repeat a question to three venire members, (4) denying appellant’s motion to discharge the venire because of cumulative, “fundamental” error, and (5) including a good-conduct-time instruction in the two injury-to-a-child charges after having granted appellant’s request to omit the same instruction from the aggravated-assault charge. We also consider whether appellant was harmed by the alleged lack of a constitutional good-conduct-time instruction for the aggravated-assault charge. We affirm.

Facts The three victims—appellant’s sister, T.T., his brother, C.T., and his mother—testified against appellant.

          Seventeen-year-old appellant was kicked out of his home for stealing his mother’s car. On December 13, 1999, appellant returned home. He threatened his mother and his three siblings, nine-year-old C.T., 13-year-old T.T., and younger brother J.T. Appellant and his friends tried to set the house on fire that same day. The mother called the police three times, but eventually allowed appellant back home. The next morning, everything seemed normal again, and the mother left all four children at home while she went to work.

          While the mother was gone, appellant attacked T.T., choking her. T.T. ran to a bathroom, but could not close the door before appellant knocked the door in and stabbed her hand with a knife. Appellant then squeezed T.T.’s head between his legs so tightly that she could hardly breathe and punched her in the face several times. Appellant told J.T. and C.T., who were watching, that he would kill them next. T.T. got away and locked herself in another bathroom. When she opened the door a few minutes later, appellant threw in a t-shirt that he had set on fire. The fire drew T.T. out of the bathroom, and appellant began choking her again. When appellant stopped choking T.T., she and J.T. ran to the bathroom and locked themselves in.

          After T.T. and J.T. had hidden in the bathroom, appellant hit C.T. on the head “a lot” of times with a hammer, cut C.T.’s arm with the hammer’s claw so deeply that his bone showed, and stabbed him in the chest “a lot” with a knife. C.T. ran away to the bathroom, and T.T. and J.T. let him in. Appellant set fire to another shirt with lighter fluid and pushed it into the bathroom. The children inside could hardly breathe and began choking, but appellant, who was laughing, prevented their coming out for air by holding the door. When appellant finally released the door, T.T. ran out, and appellant struck her on the head with the hammer.

          Appellant then made his siblings sit in the living room without treating their wounds. While the children were sitting there, appellant grabbed C.T., squeezed his head and neck, and pulled his neck back until C.T. could not breathe. Appellant made the other children watch as he attacked C.T. After C.T. passed out, appellant made the others help him drag C.T.’s body to a bedroom. Once in the bedroom, appellant continued attacking C.T. by stomping hard on C.T.’s head “a lot” of times. Appellant then left C.T. in the room, began listening to the radio, and declared, “You see? I don’t care.” Appellant returned once to C.T. to kick him again.

          After finishing his attack on C.T., appellant told T.T. and J.T. to hold their mother down when she came home so that he could stab her. Appellant threatened to kill T.T. and J.T. if they did not help him. Appellant turned down the house lights in anticipation of his mother’s return.

          As their mother came through the door that night, T.T. ran past her and over to a neighbor’s house for help. When their mother reached for the light switch, appellant grabbed her from behind, spun her around, climbed over her after she fell, and stabbed her seven times in the chest and face with a long kitchen knife, knocking out her tooth, piercing her mouth through, and slashing her tongue. Appellant called his mother “awful names” and said he was going to kill her. After appellant bent the knife blade, he beat his mother’s face with his hands, blackened her eyes, and choked her. A neighbor came, and appellant ran outside. The neighbor stopped and held appellant.

          Houston Police Department Officer Mark Medina came to the scene first. The officer saw appellant and another male standing in the front yard as he approached and found appellant’s mother in the house. The mother told Officer Medina that appellant had caused her injuries. Officer Medina also found C.T. inside: C.T. was barely conscious, was breathing shallowly, and had a faint pulse. When the officer went outside again, he saw T.T., who appeared in shock, had a cut hand, and had blood dripping from the back of her head. Other officers arrived and arrested appellant.

          There was blood in various places throughout the house. A kitchen-knife handle lay on the counter, with its blade on the floor nearby. Another bloody kitchen knife lay outside the door. One bathroom’s door had been ripped off. Burned debris was in the other bathroom. A nearly empty charcoal-lighter can lay on the floor. A few days later, the police recovered from the garage a hammer with a bit of blood on it.

          C.T. remained in intensive care for several days because of the resulting severe head trauma. T.T.’s head wound had to be stapled together.  

          Appellant took the stand in his defense. He did not deny attacking his family. Rather, he claimed that he (1) did not remember doing anything that he had been accused of doing the day before the attacks or hitting T.T. with the hammer, stabbing C.T. or his mother as many times as he did, or squeezing C.T.’s head between his legs; (2) did not kick in the bathroom door; (3) accidentally struck T.T.’s hand with the knife while they were playing; (4) became “frustrated” and lost his temper when C.T. panicked and started accusing appellant of trying to kill the others; (5) hit, kicked, and stabbed C.T. because of this frustration; (6) did not intend to kill his siblings or his mother or to hurt C.T.; (7) did not know what he was doing when he hurt C.T.; and (8) attacked his mother because “that was the only way out” of various family problems, including his mother’s allegedly abusive behavior.

Voir Dire

A.      Misstatement of Law During Voir Dire  

          In his first issue, appellant contends that the State misstated the law during voir dire by using a hypothetical, designed to determine whether members of the venire panel could consider the full punishment range, that included a hypothetical witness’s punishment recommendation. Appellant claims the misstatement could have led the jury to believe that punishment-recommendation evidence was admissible. Appellant further argues that the jury could then have inferred from the absence of such evidence during punishment that appellant did not present punishment-recommendation evidence because it was unfavorable to him. Appellant’s issue challenges the trial court’s overruling his objections to this hypothetical.

          After explaining the minimum and maximum punishments for the first-degree felony offenses, the State asked whether the venire members could consider the full punishment range “from probation to life in prison.” Some venire members indicated that they could not consider community supervision. Pursuing this line of questioning, the State gave a hypothetical that would likely implicate the minimum: a 13-year-old boy and his father, who is a good parent, but who one day gets angry at his son and loses control, punches his son in the mouth. The State continued:

State:In my hypothetical, consider you had [a] dad [who] did this. He meant to hit him. He was mad, which wasn’t a defense. The kid did sustain the injury but dad’s been a good dad. Mother admits I don’t care if he gets probation.

Appellant:Objection. That is inadmissible. Punishment recommendations are inadmissible in court included in hypothetical. Inadmissible evidence.

Court:Overruled.

State:In this hypothetical situation, once again the mother wants the dad to get probation.

Appellant:Again, objection. That’s objection[able]. She’s including a punishment recommendation [that is] prohibited—it is prohibited to give punishment recommendations as part of [the] evidence in a case.

Court:That’s overruled.

State:In any event, I throw out this hypothetical as a potential hypothetical of a case involving intentional injury to a child with serious bodily injury. That’s just one of many that may be the type of case—may be the only case you would ever consider a probation for. But I throw that out because to be a fair and impartial juror you have to be able to keep an open mind and consider.

(Emphasis added.)

          The law allows the parties to use hypotheticals during voir dire to ascertain prospective jurors’ views. Pineda v. State, 2 S.W.3d 1, 10 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). However, voir dire questions or hypotheticals that misstate the law are improper. See Middlebrook v. State, 803 S.W.2d 355, 360 (Tex. App.—Fort Worth 1990, pet. ref’d); Parker v. State, 792 S.W.2d 795, 798-99 (Tex. App.—Houston [14th Dist.] 1990, pet. ref’d). We review the trial court’s ruling on an objection to a hypothetical used in voir dire for abuse of discretion. Id. at 798.

          As a general rule, a witness may not recommend a particular punishment to the factfinder. Johnson v. State, 987 S.W.2d 79, 87 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d); see Sattiewhite v. State, 786 S.W.2d 271, 290 (Tex. Crim. App. 1989) (involving expert testimony). For this reason, the Corpus Christi court of appeals has concluded that a voir dire hypothetical implying that punishment recommendations are admissible is improper. See Taylor v. State, 74 S.W.3d 457, 463-64 (Tex. App.—Corpus Christi 2002, pet. granted) (holding trial court erred in overruling defendant’s objection, on same ground as asserted here, to trial court’s voir dire hypothetical that was similarly worded to State’s hypothetical here).  

          It does not appear that the State intended for this hypothetical to convey a false impression about the admissibility of punishment-recommendation testimony. Nonetheless, the voir dire panel could easily have inferred from the hypothetical that punishment-recommendation testimony was admissible during punishment. See id. To convey that impression would have been a misstatement of the law. Indeed, the risk of conveying that impression became greater when the trial court overruled appellant’s objections, which effectively put the stamp of approval on the State’s hypothetical. See Lee v. State, 971 S.W.2d 130, 131 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d). We thus hold that the court abused its discretion in overruling appellant’s objections. See Taylor, 74 S.W.3d at 463-64.   

          However, we also hold that the error was harmless. A misstatement of law during voir dire requires reversal only if the misstatement harmed the appellant. See Kelley v. State, 845 S.W.2d 474, 479 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d). Kelley was decided before the Court of Criminal Appeals adopted the current harmless-error rule. See id. at 477, 479 (applying former rule of appellate procedure 81(b)(2)); compare Tex. R. App. P. 44.2(a) (“constitutional error”), 44.2(b) (“other error”) (former rule 81(b)(2)’s successors). Since the new harmless-error rules went into effect, this Court has analyzed harm resulting from an erroneous ruling on a prosecutor’s misstatement of the law during voir dire under rule 44.2(b). See Glauser v. State, 66 S.W.3d 307, 316 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (applying rule 44.2(b) to trial court’s erroneous refusal to grant defendant’s request, after appellant had objected to prosecutor’s voir dire statement implying appellant had burden to produce evidence, to instruct venire panel that defendant had no such burden), cert. denied, 534 U.S. 1129, 122 S. Ct. 1068 (Feb. 19, 2002).

          A constitutional error within the meaning of rule 44.2(a) is an error that directly offends the United States Constitution or the Texas Constitution, without regard to any statute or rule that might also apply. Shelton v. State, 41 S.W.3d 208, 218 (Tex. App.—Austin 2001, pet. ref’d); Alford v. State, 22 S.W.3d 669, 673 (Tex. App.—Fort Worth 2000, pet. ref’d); Tate v. State, 988 S.W.2d 887, 890 (Tex. App.—Austin 1999, pet. ref’d). That is, an error is constitutional only if the correct ruling was constitutionally required. See Alford, 22 S.W.3d at 673. We conclude that this error does not fit that definition. See Glauser, 66 S.W.3d at 316; cf. Peak v. State, 57 S.W.3d 14, 19 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (holding misstatement of law in closing argument requires 44.2(b) harmless-error analysis); Lee, 971 S.W.2d at 131-32 (same); cf. also Martinez v. State, 17 S.W.3d 677, 692 (Tex. Crim. App. 2000) (“[Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998)]’s holding suggests that most comments that fall outside the areas of permissible argument will be considered to be error of the nonconstitutional variety. Comments upon matters outside the record . . . do not appear to raise any unique concerns that would require us to assign constitutional status.”) (emphasis added). Appellant points to no constitutional provision that would have directly required the trial court to sustain an objection to the State’s misstatement of the law.  

          We follow Glauser to hold that the trial court’s overruling appellant’s objections to the State’s misstatement of law was “other error” to be assessed under rule 44.2(b). See id., 66 S.W.3d at 316. Accordingly, we disregard the error unless the appellant’s substantial rights are affected. Tex. R. App. P. 44.2(b). “A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict.” King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). After examining the whole record, we may not reverse if we are fairly assured that the error did not influence the jury or had but slight effect on it. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998); see Tex. R. App. P. 44.2(b).

          In Taylor, in which the court held that a very similar error was harmful under any harmless-error standard, we note that (1) defense counsel stated on the record that he would not offer any punishment evidence because of the trial court’s erroneous hypothetical and (2) counsel made an offer of proof as to what punishment evidence he would have offered but for the erroneous hypothetical. See id., 74 S.W.3d at 462, 467 n.13. Here, in contrast, both appellant and his father testified at punishment. Although appellant did advise the trial court that he was not putting on mitigating evidence at punishment, the record shows that appellant did so for a reason unrelated to any erroneous impression the State’s voir dire hypothetical might have created. Additionally, the State mentioned the hypothetical only twice and did so in a context indicating that the hypothetical’s focus was to determine which venire members could not consider the minimum punishment. A later ruling may also have helped, however slightly, to dispel the false impression that appellant alleges the hypothetical could have created. During punishment, the State started to ask T.T., “If this jury were to decide to place your brother on probation . . . .” Appellant objected generally before the jury, then approached the bench to raise the same grounds as he had raised in voir dire. The trial court required the State to rephrase the question. Although the jury did not hear the grounds for appellant’s objection or the bench discussion itself, it did hear the State attempt, unsuccessfully, over appellant’s objection, to ask the victim something about probation. Furthermore, nothing shows that the jury considered the State’s voir dire misstatement in its deliberations. Finally, the circumstances of the offenses were particularly callous and violent, making it less likely that this one misstatement influenced the jury’s punishment significantly.

          Given these considerations, we are “fairly assured that the error did not influence the jury or had but slight effect on it.” Johnson, 967 S.W.2d at 417; see Tex. R. App. P. 44.2(b).

          We overrule issue one.  

          We affirm the judgment of the trial court.

Publish. Tex. R. App. P. 47.

The remaining portion of the opinion does not meet the criteria for publication and is ordered unpublished. See Tex. R. App. P. 47.

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          In his ninth issue, appellant claims that the trial court erred in denying his motion to dismiss the entire venire panel after the State’s misstatement of the law in voir dire because the error prevented him from intelligently exercising his peremptory strikes.  

          In support, appellant simply incorporates the law from his first issue, adding that he believes the error as he frames it under his ninth issue is constitutional. See Tex. R. App. P. 44.2(a) (“court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.”); cf. Franklin v. State, 23 S.W.3d 81, 83 (Tex. App.—Texarkana 2000, pet. filed) (applying rule 44.2(a) to evaluate harmfulness of error in refusing to allow defendant to question juror further after impanelment, when juror had realized, during opening argument, that she had accidentally answered voir dire question incorrectly).

          Appellant’s only analysis of how he was harmed is to say generally that “whenever a prosecutor misstates a law and a trial court ratifies the prosecutor’s misstatement, defense counsel is handcuffed from framing a proper question concerning that law so as to intelligently exercise peremptory challenges.” He does not explain how this record shows harm. Neither does appellant explain how the error as phrased in his ninth issue can be harmful when the error underlying it, for the reasons discussed above, is not. Therefore, even assuming without deciding that rule 44.2(a) applies, we hold that harm is not shown.

          We overrule appellant’s ninth issue.

B.      Denial of Challenges for Cause

          In his second, sixth, seventh, and eighth issues, appellant claims that the trial court erred by denying his challenges for cause to venire members Marin, Weisbach, Hayes, and Gamez.

          A defendant may challenge a potential juror for cause when that individual has a “bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offenses for which the defendant is being prosecuted or as a mitigation therefor or of the punishment therefor.” Tex. Code Crim. Proc. Ann. art. 35.16(c)(2) (Vernon Supp. 2002). “Bias against the law is [the] refusal to consider or apply the relevant law,” which means the panel member’s “beliefs or opinions ‘would prevent or substantially impair the performance of his duties as a juror . . . .’” Sadler v. State, 977 S.W.2d 140, 142 (Tex. Crim. App. 1998) (quoting Riley v. State, 889 S.W.2d 290, 295 (Tex. Crim. App. 1993)). A party may challenge for cause any venire member who cannot consider the full range of punishment, including the minimum. Von Byrd v. State, 569 S.W.2d 883, 891 (Tex. Crim. App. 1978). “Prospective jurors must be able to accept that, in some circumstances, the minimum punishment will be appropriate and, in some circumstances, the maximum punishment will be appropriate.” Stallings v. State, 47 S.W.3d 170, 174 (Tex. App.—Houston [1st Dist.] 2001, no pet.).

          We review the trial court’s ruling on a challenge for cause for abuse of discretion. King v. State, 29 S.W.3d 556, 568 (Tex. Crim. App. 2000). A trial court does not abuse its discretion in denying a challenge for cause to a venire member who gives equivocal, unclear, or contradictory answers on how he might answer a punishment issue. See Sattiewhite, 786 S.W.2d at 281; Stallings, 47 S.W.3d at 174; see also Colburn v. State, 966 S.W.2d 511, 517 (Tex. Crim. App. 1998).

          Appellant moved for community supervision in each cause. During voir dire, the State and appellant asked the prospective jurors whether they could consider, under appropriate circumstances, recommending community supervision in a first-degree-felony case involving serious bodily injury to a child. Thirty-two venire members stated that they could not consider community supervision in such a case. The trial court granted appellant’s challenges for cause on 27 of these venire members, but asked to speak to the five of these who remained—including Marin, Weisbach, Hayes, and Gamez.  

          After the trial court questioned the five venire members, it denied appellant’s challenges for cause on each. The State used a peremptory strike on one of the five venire members. Appellant then used three peremptory strikes on Marin, Hayes, and Gamez. The trial court denied appellant’s request for more peremptory strikes. Weisbach was seated on the jury, as were three other venire members whom appellant identified as being objectionable and on whom appellant stated he would have used the additional peremptory strikes.

          Following are the pertinent portions from the trial court’s questioning of Marin, Weisbach, Hayes, and Gamez:

Marin

Court:Hi. I need to make—I need to need to make sure I understand something. There was some question asked about the full range of punishment.

Marin:Uh-huh.

Court:I just need to make sure I understand you. The law says you have to be able to keep an open mind until you hear all the facts and determine whether or not the facts are extraordinary in one way or the other, minimum or maximum.

Marin:Right.

Court:The question is can you keep an open mind until you hear the facts to determine where the line is in the range of punishment?

Marin:Yes.

Weisbach

Court:When I talked to you, you said that you could keep an open mind until you heard the facts of the case and you could consider the full range of punishment.

Weisbach:That’s correct.

Court:And gave your word you can do it. Is that still the way it is? Wait until you hear the facts of this case to determine whether or not they’re extraordinary one way or extraordinary—

Weisbach:Sure.

Court:So, you could keep an open mind to the full range of punishment?

Weisbach:Yes.

Court:You can listen to the evidence and base your decision on the evidence heard?

Weisbach:I would.

Court:Have a seat.  

Hayes

Court:Now, when I talked to you earlier you gave your word that you could wait until you heard the evidence and the facts in this case to determine what the fair punishment would be. Remember doing that?

Hayes:Yes.

Court:Okay. You said you’d wait. You don’t know what the facts are. You’d wait until you heard the facts.

Hayes:Uh-huh.

Court:And if it was extraordinary one direction that would be one thing and extraordinary in another direction that would be another thing but you could consider the full range of punishment as explained to you.

Hayes:Right.

Court:Is that still the case? Would you wait until you hear the facts of the case and determine what a fair punishment would be?

Hayes:Sure.

Court:Minimum to maximum.

Hayes:Yes. But he gave an example in which the reason I raised my hand up is give [sic] probation because he gave an example of guilty verdict that I could not give probation on.

Court:Okay. Well, what I’m saying is you’d have to find the person guilty.

Hayes:Correct.

Court:To be able to consider probation.

Hayes:That’s correct.

Court:He gave a specific fact.

Hayes:Yes. Yes.

Court:What I’m saying is no specific example I can think of, would you keep an open mind consider the maximum and minimum to determine whether or not to give the minimum or maximum?

Hayes:Yes, sir.

Court:All right. Have a seat.

Gamez

Court:Mrs. Gamez, I need to ask you a couple of questions. When I was speaking to you earlier this afternoon—

Gamez:Uh-huh.

Court:—I asked you if you could give me your word—

Gamez:Uh-huh.

Court:—that you would consider the full range of punishment. Wait until you hear the facts of the case to determine what would be fair in punishment.

Gamez:Yes.

Court:You said you could do it. Can you still wait until you hear the facts of the case to determine whether or not they’re extraordinary one way or another to determine what the proper fair punishment is?

Gamez:Well, I feel if you do the crime you got to do the time. That’s the way I feel.

Court:That’s all right. I understand that. You don’t know whether or not, first of all, what the facts of this case are.

Gamez:No.

Court:And if the case—someone may technically do a crime which is actually a crime—

Gamez:Uh-huh.

Court:—under the laws of the State of Texas but not be as punishable as another person who commits the crime more severely. See, there are different ways to commit a crime. Some may be in some situation the least severe way to commit a crime. There are some ways most severe. And you don’t know whether this is a least or most severe.

Gamez:No.

Court:So, my question is: Can you keep an open mind and wait until you hear th[e] facts to determine whether it’s least severe or most severe or somewhere in between? And if it is the most severe, then you deal with it that way, then least severe deal with it that way in a fair manner? Can I have your word you that you’ll keep an open mind?

Gamez:I can keep an open mind, yes.

Court:To the full range of punishment. If it deserves the minimum, you give him the minimum. If it deserves the maximum, you give the maximum.

. . .

Court:If it’s the least severe consider the minimum if it’s the most severe consider the maximum. Wait until you hear what the facts are?

Gamez:Yes.

Court:Say yes or no positive.

Gamez:Yes.

Court:All right. Have a seat.

          The record shows that all four venire members agreed to keep an open mind on the full range of punishment, including the minimum, until they heard the facts. The trial court and the State had already told the venire panel that the minimum punishment included community supervision. Appellant responds that the trial court’s questions could not rehabilitate Marin, Weisbach, Hayes, or Gamez because the trial court referenced only the minimum punishment, whereas appellant specifically referenced community supervision. We disagree. Despite the trial court’s questioning in only the general terms of minimum punishment, the venire panel already knew, from the court’s and the State’s earlier statements, that the minimum punishment included community supervision. The Court of Criminal Appeals has suggested that a proper question to determine bias against the law is whether the panel member “can fully and fairly consider the entire range of punishment, including the minimum and maximum” when “the facts justify it and the law allows it . . . .” Sadler, 977 S.W.2d at 142. This is what the trial court asked. Therefore, when comparing the four venire members’ answers to appellant’s questions with their answers to the trial court’s questions, we can at most say that those answers were contradictory, unclear, or vacillating. Accordingly, we must defer to the trial court’s decision. See Stallings, 47 S.W.3d at 174.

          We overrule appellant’s second, sixth, seventh, and eighth issues.

C.      Denial of Request to Repeat a Voir Dire Question

          In his third, fourth, and fifth issues, appellant claims that the trial court erred in preventing him from repeating the community-supervision question that he had asked Weisbach, Hayes, and Gamez before the trial court rehabilitated them.

          Again, we review for abuse of discretion. See Dinkins v. State, 894 S.W.2d 330, 345 (Tex. Crim. App. 1995); Bolden v. State, 73 S.W.3d 428, 430 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). The trial court abuses its discretion when it limits a proper question concerning a proper area of inquiry. Dinkins, 894 S.W.2d at 345; Wright v. State, 28 S.W.3d 526, 534 (Tex. Crim. App. 2000). A proper question is one that seeks to discover a venire member’s views on an issue applicable to the case. Bolden, 73 S.W.3d at 430. A trial court does not abuse its discretion, however, by restricting voir dire in a few limited circumstances, including when the questions are repetitious or duplicative. See Dinkins, 894 S.W.2d at 345; Guerra v. State, 771 S.W.2d 453, 467 (Tex. Crim. App. 1988).  

          After Weisbach, Hayes, and Gamez had responded that they could consider the full punishment range depending upon the facts, appellant sought to ask each one again whether he or she could consider community supervision in a case involving first-degree injury to a child. The trial court denied appellant’s request to repeat this question. The trial court would not have abused its discretion if it refused this question for being repetitive of an earlier one. See Guerra, 771 S.W.2d at 467; King, 17 S.W.3d at 22. Moreover, appellant’s merely having repeated his question would not have changed our holding. For example, had appellant repeated this question, the worst-case scenario for appellant would have been the venire members’ answering that they could consider community supervision. That answer would have been fatal to appellant’s challenge. Similarly, the best-case scenario for appellant would have been the venire members’ repeating the substance of their original answers. Even under the best-case scenario, we would still be left with conflicting answers, which means that we would still have to defer to the trial court’s determination.  

          We overrule appellant’s third, fourth, and fifth issues.

D.      Fundamental Error

          In his tenth issue, appellant argues that he was deprived of a fair trial by an impartial jury—which he claims is fundamental error not requiring an objection—because of the cumulative effect of (1) the State’s misstatement of the law (first and ninth issues), (2) the trial court’s denial of appellant’s challenges for cause (second, sixth, seventh, and eighth issues), (3) the trial court’s denial of appellant’s request to repeat the community-supervision question (third, fourth, and fifth issues), (4) the trial court’s allegedly improper voir dire remarks, and (5) the State’s use of an improper commitment question.

          1.       Bases Already Decided Against Appellant

          We have already held that the first three bases of appellant’s fundamental-error challenge were either not erroneous or not harmful. Accordingly, those three bases cannot support appellant’s fundamental-error challenge. We thus address only the fourth and fifth bases of appellant’s challenge—the trial court’s voir dire remarks and the State’s use of a fact-specific hypothetical.

          2.       The Trial Court’s Voir Dire Remarks

          Appellant contends that the trial court’s opening remarks at voir dire concerning punishment improperly presupposed appellant’s guilt:

Court:But as a—in a general term, if the State proves each and every element of the offense in the indictment beyond a reasonable doubt, you as a jury have a duty to find the defendant guilty. If the State fails to prove each and every element of the offense listed in the indictment beyond a reasonable doubt, you as a jury have a duty to find the defendant not guilty. That is your role, okay. In a nutshell you’re using your common sense and your powers of observation, will sit in this jury box, listen to evidence from that witness stand, determine using your experience what you believe and what you don’t. You will take the law that I give you based on the observations that you made in your common sense and life experience and your perspective you will determine whether or not the State has met its burden of proof as to each and every element. That’s your job in the guilt and innocence phase. Now, in a situation where you, based on all that, have determined that the State has proved its case beyond a reasonable doubt and you have followed your oath as a juror and found the defendant guilty, you then will look at the punishment phase of the trial. Now the law says that in any case—any first-degree felony listed in the Penal Code—bless you—in these first-degree felonies listed in the Penal Code that the legislature has set a range of punishment. An area from which a jury must choose the proper punishment. And in this situation, in the State of Texas, the Legislature has set the broadest range of punishment. And the Legislature has said if someone has never before been convicted of a felony in this state or any other state in these United States or any court of the United States, then they are [sic] eligible for probation. That means under some set of circumstances it might be the right thing to do. Okay. It’s also said that, you know, some set of circumstances the maximum that they might receive is life in the penitentiary. Again, anyone know the facts of this case?

(No response.)

Court:All right. Everyone has agreed with me that you don’t. So, where would the facts of this case lie within this broad range of punishment? Where they belong, don’t know. Do you? You won’t know until you hear them, will you? So, the law requires for you to be able to keep an open mind and say, “show me what you got. Show me what the facts are. I’ll keep an open mind until I hear and determine where they fall in this broad range.” Is anybody here who cannot do that? Can I get your word of honor you will keep an open mind until you hear the facts of the case and determine where they lie?

(Venire persons raise hands.)

Venire Member:I won’t. Not with a child involved.

Court:Okay. I’ll let the attorneys talk to you about that. It is important you understand that you be able to consider the full range of punishment. There are about four or five people who raised their hands. Can I get the word of honor of everyone else you can keep an open mind until you hear the facts to determine where these cases fall in this range of punishment?

Appellant:Objection, Your Honor. That predisposes these cases either to be found guilty. The question you asked presupposes he’ll be found guilty. And there is no presupposition because he has pled not guilty in these cases.

. . .

Court:I have stated on the record everything that I am talking about only deals with the situation in which the State has proved each and every element of the offense beyond a reasonable doubt. I am not presupposing anything.

Appellant:And I don’t agree with what the Judge said. The manner in which the question was phrased by asking them about the facts of this case and way they felt on range of punishment presupposes the defendant found guilty. And that’s the only thing I’m saying. I didn’t say the Court expressly made the statement. As the Court said, I’m talking presupposing found guilty, presupposing the way the question is asked. And that was what my objection was.

Court:All right.

Appellant:The objection is that it deprives my client of impartial jury.

Court:All right.

Appellant:Have a ruling?

Court:Yes, that’s overruled.

(All emphasis added.)

          Appellant claims that the underlined statements improperly presupposed his guilt. We disagree. The italicized portions quoted above clearly show that the trial court instructed the jury that it would reach punishment only if it first found that the State proved each element of the offenses beyond a reasonable doubt. The trial court’s comments did not presuppose appellant’s guilt. Even if they had, the trial court cured any error by stating, immediately after appellant’s objection, that “everything that I am talking about only deals with the situation in which the State has proved each and every element of the offense beyond a reasonable doubt. I am not presupposing anything.” Accordingly, we hold that the trial court’s voir dire remarks cannot support appellant’s challenge.

          3.       The State’s Alleged Commitment Questions

           Appellant next contends that the State improperly attempted to commit the panel using fact-specific hypotheticals. Specifically, appellant contends that the State attempted to commit venire members to factual situations involving (1) injury with a hammer and (2) “a punch, a kid, a mouth, lost teeth, a hurt jaw and a big swollen jaw.”

          Initially, we note that appellant does not assert that these two hypotheticals, if they were improper, by themselves can support his fundamental-error challenge. Rather, he argues that these two hypotheticals, when combined with the other four bases mentioned above, deprived him of an impartial jury and thus support his challenge. We have already held that the other four bases on which appellant relies for his fundamental-error challenge were either not error or not harmful. That leaves only these two hypotheticals, rather than multiple errors.

          Even assuming that these hypotheticals alone could support appellant’s challenge, we hold that they were either not improper or not harmful. With regard to the hypothetical in which the State described a child’s facial injuries sustained by a punch, the State was using this hypothetical to determine who could consider the minimum punishment. Appellant’s only objection was that that hypothetical did not describe serious bodily injury. He did not object that this was an improper commitment question. Accordingly, it appears that even appellant did not consider this to be improper commitment at the time.

          With regard to the hypothetical involving a hammer, the record shows that the venire members themselves injected the term into the discussion. Upon the State’s further questions about the minimum punishment, which did not mention a hammer, venire member number 27 responded that he could not consider community supervision for a child’s injuries resulting from a knife or a hammer. Additionally, when asked merely whether she could not give community supervision “under any circumstances,” venire member number 35 volunteered, “No, not with a hammer and knife, no.” Up until this point, the State had never used the words “knife” or “hammer.”   

          Additionally, the State immediately followed up venire member number 27’s answer by asking, “Even without the same facts . . . [?]” (Emphasis added.) This follow-up question shows that the State was trying to do the opposite of committing the venire member to any facts involving a hammer. It was only after juror number 35 had injected into the discussion the idea of injury involving a hammer and knife that the State finally used the term hammer: “Let me throw out there, how about the same situation. Dad happened to be working in the garage with [a] hammer and turned around and hit [the son’s] face with the hammer?” If anything, it appears the State was trying to prevent venire member number 35 from committing to the factual scenario the venire member had created. Given these circumstances, we doubt that the State’s one mention of a hammer in response to two venire members’ earlier uses of the term constituted an improper commitment question. Compare, generally, Standefer v. State, 59 S.W.3d 177, 179 (Tex. Crim. App. 2001) (holding commitment questions commit prospective juror to resolve, or to refrain from resolving, an issue in certain way after learning particular fact); compare also Allridge v. State, 850 S.W.2d 471, 480 (Tex. Crim. App. 1991).  

          Additionally, the line of questioning that included both of the objected-to hypotheticals was posed to, or was offered in response to answers by, venire member numbers 27, 28, 32, 34, 35, 38, 40, 41, 42, 44, 50, 53, and 58, who had indicated that they could not consider community supervision under any circumstances. The trial court later sustained appellant’s challenges for cause to each of these jurors. None of them served on the jury. Given this fact, plus the voir dire discussion’s entire context, it is doubtful that either hypothetical could have harmed appellant under either harmless-error standard. See Tex. R. App. P. 44.2.

          Because appellant has not shown that error or harm resulted from any of the five actions of which he complains, these actions cannot cumulatively result in fundamental error.

          We overrule appellant’s tenth issue.

Good-Conduct-Time Instruction

          In his eleventh issue, appellant contends that the trial court erred in including a required good-conduct-time instruction in the two injury-to-a-child punishment charges after having granted appellant’s request to omit that same instruction from the aggravated-assault punishment charge. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (Vernon Supp. 2002) (mandating such instruction for felonies like appellant’s). Appellant speculates that, because the good-conduct-time instruction was included in two of the charges, the jury might have considered that instruction in its deliberations on the third charge, despite that instruction’s not appearing in the third charge. Appellant argues that, alternatively, the trial court should have added an instruction in the three charges that the charges were “mutually exclusive.” See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(b) (Vernon Supp. 2002) (“[T]he court shall give such additional written instructions as may be necessary . . . .”).

          First, all three charges already included the following instruction: “You are further instructed that in fixing the defendant’s punishment, which you will show in your verdict, you may take into consideration all the facts shown by the evidence admitted before you in the full trial of this case and the law as submitted to you in this charge.” (All emphasis added.) This was an instruction to consider the law as recited only in the charge specific to the particular offense. We presume that the jury followed that instruction, absent a showing to the contrary. See Luquis v. State, 72 S.W.3d 355, 366-67 (Tex. Crim. App. 2002). Nothing shows that the jury either did not follow the instruction quoted immediately above or that it considered the good-conduct-time instruction in the aggravated-assault case. Additionally, when appellant explained the good-conduct-time instructions during closing argument, he made it clear that he was discussing only the injury-to-a-child charges. Given these circumstances, we decline to speculate on whether the jury did as appellant suggests. See Almanza v. State, 686 S.W.2d 157, 171, 174 (Tex. Crim. App. 1984) (upon review of objected-to erroneous charge, appellate court reviews for “some harm,” meaning actual, not theoretical, harm); accord Medina v. State, 7 S.W.3d 633, 643 (Tex. Crim. App. 1999); cf. Luquis, 72 S.W.3d at 367-68.

          Second, the record shows that appellant urged omitting the entire good-conduct-time instruction from the aggravated-assault charge because that instruction was unconstitutional as applied to him for that offense. On appeal, appellant relies on this Court’s holding in Jimenez v. State for the same proposition. See 992 S.W.2d 633 (Tex. App.—Houston [1st Dist.] 1999) (“Jimenez I”), aff’d on other grounds, 32 S.W.3d 233 (Tex. Crim. App. 2000) (“Jimenez II”). In Jimenez I, this Court held that the article 37.03, section 4(a) good-conduct-time instruction, although required for certain felonies, violated due process and due course of law as applied to defendants whose crimes—like appellant’s aggravated-assault offense—made them ineligible for early release based on accrual of good-conduct time. See Jimenez I, 942 S.W.2d at 638; accord Bradley v. State, 45 S.W.3d 221, 224 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d) (declining to revisit holding of Jimenez I). This Court has since overruled both Jimenez I and Bradley to hold that the good-conduct-time instruction is constitutional as applied to such defendants. See Bui v. State, 68 S.W.3d 830, 834, 841, 843-44 (Tex. App.—Houston [1st Dist.] 2002, no pet.). The Court of Criminal Appeals has since held likewise. See Luquis, 72 S.W.3d at 365-66. Therefore, it would not have been error to have included this instruction in all three charges. Appellant cannot be harmed by an instruction that is mandatory and constitutional. See Luquis, 72 S.W.3d at 363, 365. Accordingly, even were we to speculate whether the jury considered the good-conduct-time instruction when considering the aggravated-assault charge, appellant cannot show actual harm.

          We overrule appellant’s eleventh issue.

          In his twelfth issue, appellant contends that the he was denied due process, due course of the law, and equal protection by the lack of an available constitutional good-conduct-time instruction for the aggravated-assault charge.

          Appellant did not object on this ground below with respect to his aggravated-assault charge. See Tex. R. App. P. 33.1. Neither did he ask the trial court to fashion an alternative, constitutional instruction for that charge. Rather, appellant asked simply that the entire instruction be removed. The trial court complied. Appellant received what he requested. Moreover, we have already held that the article 37.07, section 4(a) instruction is constitutional. See Luquis, 72 S.W.3d at 363, 365; Bui, 68 S.W.3d at 834, 841, 843-44. There is thus neither error nor harm.

          We overrule the twelfth issue.

Conclusion

          We affirm the judgment of the trial court.

       Tim Taft

     Justice

Panel consists of Justices Taft, Alcala, and Price.     

Publish in part. Tex. R. App. P. 47.