Jerry Villarreal v. State ( 2014 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00600-CR
Jerry Villarreal, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF HAYS COUNTY, 207TH JUDICIAL DISTRICT
NO. CR-12-0514, HONORABLE JACK H. ROBISON, JUDGE PRESIDING
MEMORANDUM OPINION
A jury convicted appellant Jerry Villarreal of Assault Family Violence Repeat
Offender. Punishment, enhanced by two prior felony convictions, was assessed at life in prison. On
appeal, appellant asserts that the trial court erred in sustaining the State’s objection to a voir dire
question posed by defense counsel regarding the criminal standard of proof beyond a reasonable
doubt, thereby denying him his constitutional right to be heard in violation of Article 1, Section 10
of the Texas Constitution. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
During voir dire, the judge presiding over appellant’s trial sustained the State’s
objection of “improper commitment” to a question regarding reasonable doubt posed by defense
counsel to an individual veniremember. After another sustained objection to a similar iteration of
the question, defense counsel proceeded to ask the entire panel of veniremembers row by row if they
could not follow the criminal standard of proof beyond a reasonable doubt as it had been explained
to them. No objection was made to this formulation of the question. One of the veniremembers
responded by stating that she would not be able to follow the proof-beyond-a-reasonable-doubt
standard and was thereafter stricken for cause. At the conclusion of voir dire, following peremptory
strikes and strikes for cause, no additional veniremembers remained beyond those needed to seat
the jury.
DISCUSSION
Commitment-Question Analysis
Article 1, Section 10 of the Texas Constitution mandates that “in all criminal
prosecutions the accused shall . . . have the right of being heard by himself, or counsel, or both . . . .”
Tex. Const. art. 1, § 10. The right to be heard encompasses the right of defense counsel to question
prospective jurors in order to intelligently and effectively exercise peremptory challenges and
challenges for cause. Rich v. State, 160 S.W.3d 575, 580 (Tex. Crim. App. 2005). Alleged
commitment questions posed to veniremembers during voir dire, however, are subject to a two-step
analysis to determine their propriety: “(1) is the question a commitment question, and (2) did the
question include facts—and only those facts—that lead to a valid challenge for cause?” Standefer
v. State, 59 S.W.3d 177, 182 (Tex. Crim. App. 2001). As to the first step in the analysis, a
commitment question is one that binds or commits a prospective juror to a verdict or asks a
prospective juror to refrain from resolving an issue, based on a hypothetical set of facts. See id. at
179. Commitment questions are proper when the law requires jurors to make a certain type of
commitment and their inability to do so would result in a challenge for cause. See id. at 181. For
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example, a question that commits a juror or jurors to considering the full range of punishment for
a particular offense is proper because jurors are legally obligated to do so already. See id.
Commitment questions are improper and should be prohibited, however, when the law does not
require the proposed commitment. Id. A commitment question as to whether a prospective juror
considers a certain type of evidence to be mitigating, for example, is improper because the answer
to such a question would not give rise to a challenge for cause. See id.
As to the second step in the commitment-question analysis, it is improper voir dire to
seek to commit a prospective juror to the facts of the case at hand. Atkins v. State, 951 S.W.2d 787,
790 (Tex. Crim. App. 1997). Therefore, even if a question does give rise to a challenge for cause,
“the question may nevertheless be improper if it includes facts in addition to those necessary to
establish a challenge for cause.” Standefer, 59 S.W.3d at 182. In Standefer, the commitment
question posed asked jurors whether they would convict a person arrested while possessing a crack
pipe containing a residual amount of cocaine in his pocket. Id. While “the state could have
permissibly questioned the prospective jurors about their ability to follow a law that holds a person
guilty of possession even though the possession involves only a residue amount of the drug in
question,” the question actually posed was improper because it directly tracked the facts of the case
at hand and included facts beyond those necessary to assess whether a prospective juror could be
challenged for cause. Id.
In the instant case, defense counsel posed the following question to an individual
veniremember: “On a scale of one to seven, do you agree with the statement that I would not require
the State to prove its case beyond a reasonable doubt?” The State objected to this as an improper
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commitment question, and the court sustained the objection. While we recognize that this is a
somewhat difficult question to decipher, we conclude that it is not a commitment question at all
because it is not based on a hypothetical set of facts and does not require the veniremember to
commit to a decision after learning a particular fact. Accordingly, it was an abuse of discretion for
the trial court to sustain the State’s objection on that basis. See Hernandez v. State, 390 S.W.3d 310,
315 (Tex. Crim. App. 2012), cert. denied, 134 S. Ct. 823 (2013) (appellate court reviews trial court’s
ruling limiting voir-dire questioning for abuse of discretion).
Harmless Error Analysis
After concluding that the trial court abused its discretion in sustaining the State’s
objection, we must determine the nature of this error under Rule 44.2 of the Texas Rules of
Appellate Procedure regarding reversible error in criminal cases. Easley v. State, 424 S.W.3d 535,
539 (Tex. Crim. App. 2014). Rule 44.2(a) applies to constitutional errors subject to harmless-error
review and mandates that “the 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.” Tex. R. App. P. 44.2(a). Rule 44.2(b), on the other hand, applies to all
other errors and mandates that an “error, defect, irregularity or variance that does not affect
substantial rights must be disregarded.” Id. 44.2(b). Therefore, before we can apply the relevant
standard, we must determine whether the trial court’s error in sustaining the State’s objection rises
to the level of a constitutional error requiring application of the stricter Rule 44.2(a) standard.
Appellant cites Rodriguez-Flores v. State, 351 S.W.3d 612, 624 (Tex. App.—Austin
2011, pet. ref’d), for the proposition that the trial court’s denial of a defendant’s right to ask a proper
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question during voir dire is an error of constitutional magnitude and Jones v. State, 223 S.W.3d 379,
382 (Tex. Crim. App. 2007), for the proposition that the proper harm-analysis standard when defense
counsel is denied the opportunity to ask a permissible question is Rule 44.2(a). The Texas Court of
Criminal Appeals recently held, however, that erroneously limiting voir dire does not necessarily
equate to a violation of the constitutional right to be heard. See Easley, 424 S.W.3d at 541
(overruling Plair v. State, 279 S.W. 267, 269 (Tex. Crim. App. 1925), to extent that it held that
erroneously limiting voir dire is constitutional error because such limitation is per se violation of
right to counsel). As Plair’s progeny, Jones is no longer good law regarding the proper harm-
analysis standard. Similarly, to the extent that Rodriguez-Flores holds that denial of a proper voir
dire question is a per se violation of the right to counsel, it is also no longer helpful in our analysis.
In Easley, the court of criminal appeals held that while there may be instances in
which a judge’s limitation on voir dire is “so substantial” as to rise to the level of a constitutional
error, such instances are generally the exception rather than the rule. See id. The court affirmed the
appellate court’s application of the more lenient non-constitutional harm analysis under Rule 44.2(b)
to the trial court’s erroneous refusal to allow the defendant’s counsel to compare the criminal burden
of proof beyond a reasonable doubt to other burdens of proof during voir dire. Id. The court agreed
with the appellate court’s holding that the trial court’s error did not rise to the level of a
constitutional error because defense counsel was not “foreclosed from explaining the concept of
beyond a reasonable doubt and exploring the veniremembers’ understanding and beliefs of
reasonable doubt by other methods.” Id. The correct inquiry to determine whether the error was of
a constitutional nature, therefore, was not whether defense counsel was prevented from exercising
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his “preferred method” of questioning, but rather whether he was “precluded from discussing and
explaining the beyond-a-reasonable-doubt standard.” See id. at 542 (emphasis added).
As the court of criminal appeals noted in Easley, the court of appeals reviewed the
record with special attention to defense counsel’s voir dire questioning and determined that counsel
was in fact able to discuss and explain the criminal standard of proof by individually asking
veniremembers what their verdicts would be if they had “a single doubt based on reason.” Id. All
answered “Not guilty,” indicating that defense counsel “was able to demonstrate and effectively
make his point that criminal trials require a heightened burden of proof and the presumption of
innocence.” Id. The appellate court also properly took note of defense counsel’s closing argument
in which he reiterated his point regarding the reasonable doubt standard: “[T]he State’s burden of
proof beyond a reasonable doubt . . . [is] used for taking away a person’s liberty . . . . Before you
take away the liberty of my client, all doubt based on reason as to [the crime he’s charged with] must
be excluded . . . .” Id. Under Rule 44.2(b), a reviewing court “should consider everything in the
record,” including evidence and closing arguments. Id.
Appellant argues that under the instant circumstances the trial court’s denial of his
proposed voir-dire question resulted in a constitutional violation of his right to counsel because, had
defense counsel been allowed to proceed with the question, he could have identified additional
veniremembers to strike for cause, which would have resulted in a jury of less than twelve and
therefore a mistrial. Appellant disregards, however, the fact that defense counsel was able to
rephrase the question to an unobjectionable form from which he was able to generate a challenge for
cause to a veniremember. Defense counsel asked the jury if there was anyone among them “that
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could not follow beyond a reasonable doubt” as it had been explained to them.1 Juror number 133
raised her hand, prompting defense counsel to ask why she “couldn’t follow the law,” to which she
responded that she “wouldn’t be able to listen to one session or one rule and make [her] judgment
if [she] knew that there is a history.” Juror number 133 was thereafter stricken for cause for her
professed inability to follow the criminal standard of proof beyond a reasonable doubt. The record
does not indicate that any other jurors were similarly unable to hold the State to the heightened
criminal burden of proof beyond a reasonable doubt, as appellant contends.
The record also reflects that during closing arguments defense counsel reminded the
jury of the importance of following the law regarding application of the criminal burden of proof by
charging the jury with deciding “whether the State has proved their case beyond a reasonable doubt.
Not whether it happened. Whether it was proved beyond a reasonable doubt.” Therefore, although
appellant’s counsel was not able to proceed with his preferred method of voir dire, he was not
precluded from discussing and explaining the beyond-a-reasonable-doubt standard of proof.
Therefore, appellant was not substantially injured by the trial court’s error in sustaining the State’s
objection. Because appellant’s defense counsel was able to instruct on and explain to the jury the
proof-beyond-a-reasonable-doubt standard, which the record suggests they comprehended, appellant
was not denied the right to counsel in violation of Article 1, Section 10 of the Texas Constitution.
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During voir dire defense counsel undertook to explain the heightened burden of proof in
criminal trials with a visual demonstration using cups to represent the differing standards
—preponderance of the evidence, clear and convincing, and beyond a reasonable doubt.
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CONCLUSION
Having concluded that the trial court’s denial of appellant’s proposed voir-dire
question was harmless non-constitutional error, we affirm the trial court’s judgment.
_____________________________________________
J. Woodfin Jones, Chief Justice
Before Chief Justice Jones, Justices Pemberton and Rose
Affirmed
Filed: August 7, 2014
Do Not Publish
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