Ronnie Joe Daniel v. State ( 2011 )

IN THE
TENTH COURT OF APPEALS
No. 10-10-00061-CR
RONNIE JOE DANIEL,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 85th District Court
Brazos County, Texas
Trial Court No. 07-02135-CRF-85
MEMORANDUM OPINION
Ronnie Joe Daniel was convicted of the offense of Sexual Assault of a Child. TEX.
PENAL CODE ANN. § 22.011 (West Pamp. 2010). After the jury found an enhancement
paragraph of a prior aggravated sexual assault conviction to be true, Daniel was
sentenced to life in prison. Because a question asked of the prospective jury panel was
not a commitment question and because Daniel’s complaint about the exclusion of
evidence was not preserved for appeal, the trial court’s judgment is affirmed.
BACKGROUND
Around Christmas of 2005, Daniel and S.M. met and started a relationship. In
November of 2006, the two had sex. S.M. was 16 years old at the time and Daniel was
37 years old. S.M became pregnant and had a baby in August of 2007. S.M. was 17 at
the time the baby was born. DNA testing confirmed that Daniel was the father of the
baby.
COMMITMENT QUESTION
In his first issue, Daniel asserts that the trial court erred in permitting the State to
ask an improper commitment question during jury selection.1 The question at issue
here was introduced by an interrupted series of statements.
State: Another scenario: 40-year-old man, 16-year-old girl; they’ve known
each other for years; find themselves together alone and one thing just
leads to another.
Defense: Judge, again, I would object at this point. This is an improper
commitment question under Standefer.
State: I haven’t asked a question.
Court: Go ahead. Ask the question. Then if you have an objection, let me
know what it is.
State: And let’s say that the man knows the girl just got her driver’s
license. Now, one thing lead to another [-] they had sex. Would that be a
sexual assault of a child?
Defense: At this point I object under Standefer. That’s an improper
commitment question.
Court: Okay. I’ll overrule the objection. You may ask that question.
1Daniel objected to another question as a commitment question but he does not complain about that
question on appeal.
Daniel v. State Page 2
State: That second scenario, wouldn’t that be a sexual assault of a child?
Jury Panel: Yes.
The first step in our review is to determine whether this question was a
commitment question. Daniel argues that it was. Commitment questions are those
questions 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). The purpose for prohibiting improper commitment questions
by either the State or the defendant is to ensure that the jury will listen to the evidence
with an open mind-a mind that is impartial and without bias or prejudice-and render a
verdict based upon that evidence. Sanchez v. State, 165 S.W.3d 707, 712 (Tex. Crim. App.
2005). Commitment questions require a prospective juror to promise that he will base
his verdict or course of action on some specific set of facts before he has heard any
evidence, much less all of the evidence in its proper context. Id. It is this prejudgment
of the value and importance of certain evidence that is the evil to be avoided unless the
law requires such a commitment. Id.
But not all commitment questions are improper. For a commitment question to
be proper, one of the possible answers to that question must give rise to a valid
challenge for cause and must contain only those facts necessary to test whether a
prospective juror is challengeable for cause. Standefer, 59 S.W.3d at 182. An improper
commitment question attempts to create a bias or prejudice in the prospective juror
before he has heard the evidence, whereas a proper voir dire question attempts to
Daniel v. State Page 3
discover a prospective juror's preexisting bias or prejudice. Sanchez v. State, 165 S.W.3d
707, 712 (Tex. Crim. App. 2005)
When comparing the question in this case to questions that have been held to be
commitment questions, we do not consider it to be a commitment question. It does not
ask the panel to resolve or refrain from resolving an issue in the case on the basis of one
or more facts contained in the question. The State was not asking the panel if they
could convict based on certain facts, like the questions in Atkins or Standefer. See Atkins
v. State, 951 S.W.2d 787, 789 (Tex. Crim. App. 1997) ("If the evidence, in a hypothetical
case, showed that a person was arrested and they had a crack pipe in their pocket, and
they had a residue amount in it, and it could be measured, and it could be seen, is there
anyone who could not convict a person, based on that."); Standefer v. State, 59 S.W.3d
177, 179 (Tex. Crim. App. 2001) ("Would you presume someone guilty if he or she
refused a breath test on their refusal alone?"). What the State was doing here is more
akin to what Courts have found not to be commitment questions. See Halprin v. State,
170 S.W.3d 111 (Tex. Crim. App. 2005); Berkley v. State, No. AP-74,336, 2005 Tex. Crim.
App. Unpub. LEXIS 394 (Tex. Crim. App. April 6, 2005) (not designated for
publication); Zuniga v. State, Nos. 14-06-00405-CR, 14-06-00406-CR, 2007 Tex. App.
LEXIS 4552 (Tex. App.—Houston [14th Dist.] June 12, 2007, pet. ref’d) (mem. op.).
In Halprin, the appellant complained that many hypotheticals posed by the State
to illustrate the variations of the offense of murder were improper commitment
questions. The Court of Criminal Appeals held that, for the issues that were preserved,
the hypotheticals were not commitment questions because they did not attempt to bind
Daniel v. State Page 4
the prospective juror to resolve or refrain from resolving an issue, in that case the
minimum punishment for an intentional murder, on the basis of one or more facts
contained in the questions. Halprin, 170 S.W.3d at 118-121.
In Berkley, the appellant complained about hypothetical scenarios which the state
posed to prospective jurors involving death as a result of mercy killing, domestic
violence, and bullying. The appellant claimed both at trial and on appeal that the
hypotheticals improperly committed and contracted with prospective jurors. The
appellant complained that the State followed up in each hypothetical with the broad
question whether the prospective juror could conceive a scenario in which he or she
could consider probation which, in essence, asked the prospective jurors whether they
could consider probation for a mercy killing or when the victim was of an “unpalatable
character." The Court of Criminal Appeals held:
It appears to us that, in using those hypotheticals, the prosecutor was not
asking prospective jurors to resolve, or to refrain from resolving, any issue
in any certain way after learning of a particular fact, and thus was not
asking a commitment question, prohibited or otherwise. Rather, the
prosecutor was presenting possible scenarios to facilitate inquiry into the
prospective juror's views regarding punishment. Because the challenged
inquiries were not improper commitment questions, we conclude that the
trial court did not err in overruling appellant's objections thereto.
Berkley, 2005 Tex. Crim. App. Unpub. LEXIS 394 at *4-5.
In Zuniga, the trial court began the voir dire of the prospective jurors. Because
the defendant elected to have the jury assess his punishment, the trial court
summarized the range of punishment for the defendant’s offenses. The trial court also
gave differing fact scenarios of the same offense to illustrate to the panel that under
Daniel v. State Page 5
both scenarios, the law had been violated but that the jury might consider both
scenarios differently to determine the appropriate punishment. When the trial court
then asked whether the members of the panel could consider the full range of
punishment, the defendant objected, stating that the court was qualifying the panel on a
specific set of facts and that the scenarios made it easier for the panel to commit to
considering probation in a proper case. The objection was overruled. On appeal, the
appellant complained that the trial court improperly committed the panel to specific
fact scenarios which tended to bias or influence the jury toward a particular type of
crime related to the offense with which he was charged. The appellate court held that
“[b]ecause the trial judge did not attempt to bind the venire members to resolve or
refrain from resolving an issue on the basis of one or more of the facts contained in her
examples, her questioning of the panel was proper.” Zuniga, 2007 Tex. App. LEXIS 4552
at *6.
Prior to the question at issue in this case, the State had been educating the
prospective jury panel on the law of sexual assault of a child. At least one panel
member was having difficulty following the law where the victim was 16 years old.
Another did not know whether she would consider the facts of a less egregious sexual
assault in punishment or in guilt/innocence. To further assist the prospective jurors,
the State gave them different fact scenarios to illustrate the law. After one fact scenario,
the State asked a similar question, “Has a sexual assault as the law’s [sic] written been
committed,” without objection. Then, after the second scenario detailed above and
objection, the State went on to explain,
Daniel v. State Page 6
What I’m trying to illustrate by the two different examples are you’re
going to have different fact scenarios and we’ve talked about some, but
you’re going to have different fact scenarios and don’t know what the
facts are. But you might look differently at that second scenario than the
first scenario, you might treat them differently in punishment. But they’re
both, under the law, sexual assault of a child as it’s written. Does
everyone see how those facts fit in with the law as it’s written?
Further, the voir dire record reflects that the State explained several times to the
prospective jury panel that they did not, at that time, know the facts of the case.
After reviewing this record and in light of the relevant case law, we find that the
question asked by the State is not a commitment question. Because it was not a
commitment question, the trial court did not err in overruling Daniel’s objection.
Daniel’s first issue is overruled.
EXCLUSION OF EVIDENCE2
In his second issue, Daniel contends the trial court erred in excluding evidence of
the presence of an additional witness during the offense. The crux of Daniel’s
complaint on appeal is that the exclusion of this evidence deprived him of the ability to
present a potential fact witness. The State asserts that Daniel has not preserved this
issue for review. We agree with the State.
At trial, Daniel wanted to ask S.M. about whether her two-year-old son was
present during all encounters with Daniel, including the time of the sexual assault. The
State argued that evidence of another child by S.M. was inadmissible under Rule 412 of
2The issue is multifarious and could be overruled on that basis alone. Mays v. State, 318 S.W.3d 368, 385
(Tex. Crim. App. 2010); Wood v. State, 18 S.W.3d 642, 649 n.6 (Tex. Crim. App. 2000). Further, primarily
due to the multifarious nature thereof, it is difficult for us to align the purported evidence that was not
admitted with an offer of that evidence, the related objection or basis for exclusion of the evidence, and
the trial court’s ruling excluding the evidence. We will, however, address the fundamental complaints as
we understand them.
Daniel v. State Page 7
the Texas Rules of Evidence because it was necessarily evidence of S.M.’s prior sexual
activity. Daniel claimed in response that the child was a fact witness and whose
presence was a means to attack S.M.’s credibility. At a hearing outside the presence of
the jury, Daniel questioned S.M. about the presence of her child during her encounters
with Daniel. Daniel did not, however, present the child for questioning and did not
present any kind of summary as to what the child’s testimony, or even what the
relevance of the child’s testimony, would be. After the hearing, the trial court agreed
with the State and excluded the evidence.
In order to preserve error regarding a trial court's decision to exclude evidence,
the complaining party must comply with Rule of Evidence 103 by making an "offer of
proof" which sets forth the substance of the proffered evidence. TEX. R. EVID. 103(a)(2);
Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009). The offer of proof may
consist of a concise statement by counsel, or it may be in question-and-answer form.
Mays, 285 S.W.3d at 889; Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998). If in
the form of a statement, the proffer "must include a reasonably specific summary of the
evidence offered and must state the relevance of the evidence unless the relevance is
apparent, so that the court can determine whether the evidence is relevant and
admissible." Mays, 285 S.W.3d at 890 (quoting Warner, 969 S.W.2d at 2). The primary
purpose of an offer of proof is to enable an appellate court to determine whether the
exclusion was erroneous and harmful. Mays, 285 S.W.3d at 890 (citing Steven Goode,
Olin Guy Wellborn III & M. Michael Sharlot, 1 Texas Practice - Guide to the Texas Rules
of Evidence: Civil and Criminal § 103.3 (1993)).
Daniel v. State Page 8
On appeal, Daniel is trying to argue that because he was prevented from
obtaining testimony from S.M. about the presence of S.M.’s child when S.M. was
sexually assaulted, the extent of his cross-examination of S.M. was improperly limited.
He argues further that this limitation on cross-examination had the effect of Daniel
being unable to impeach S.M.’s credibility with the testimony of a third party witness
present during the assault. We note that the presence of S.M.’s child, as such, during
the assault is uncontroverted. The mere presence of S.M.’s child was not, however,
relevant to the commission of the assault. If S.M.’s child had the capacity to testify,
which we assume absent evidence to the contrary, Broussard v. State, 910 S.W.2d 952, 960
(Tex. Crim. App. 1995); Rodriguez v. State, ___ S.W.3d ___, 2011 Tex. App. LEXIS 834
(Tex. App.—Waco Feb. 2, 2011, no pet. h.), the nature of the child’s testimony was never
presented in any form. Daniel never tried to call S.M.’s child as a witness. To the extent
Daniel wanted to establish that the third person present during the assault was S.M.’s
child, that issue is irrelevant. But to the extent that Daniel complains he was deprived
of the child’s testimony, that issue was not preserved.
Without an offer of proof as to the substance of the child’s testimony, we cannot
determine from this record why the child would be a fact witness or why the child’s
presence at the time of the assault would be a proper means to attack S.M.’s credibility.
Accordingly, Daniel did not preserve his complaint for appeal, and his second issue is
overruled.3
3 Further, we cannot conclude on this record that the trial court abused its discretion by excluding S.M.’s
testimony about the presence of her child during her encounters with Daniel.
Daniel v. State Page 9
CONCLUSION
Having overruled both issues presented on appeal, we affirm the judgment of
the trial court.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed March 16, 2011
Do not publish
[CRPM]
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