Whitemon, Adrian Lee

May 6, 2015
No. PD-0381-15
_____________________________________________________
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
AUSTIN, TEXAS
_____________________________________________________
ADRIAN LEE WHITEMON
Appellant-Petitioner
vs.
THE STATE OF TEXAS
Appellee-Respondent
_____________________________________________________
Petition for Discretionary Review from the
Second Court of Appeals, Tarrant County
Appeal Number 02-13-00380-CR
_____________________________________________________
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
May 6, 2015
_____________________________________________________
Lisa Mullen
Attorney at Law
3149 Lackland Road, Suite 102
Fort Worth, Texas 76116
(817) 332-8900
State Bar No. 03254375
Lisa@MullenLawOffice.com
Oral argument requested
Table of Contents
Table of Contents………………………………………………………….ii
Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..iii
Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..iv
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Statement of Procedural History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . …....iv
Grounds Presented for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......1
Ground 1.………………………………………………………………….....2
THE COURT OF APPEALS ERRED IN FINDING THAT, ALTHOUGH THE
TRIAL COURT ERRED IN SUSTAINING THE STATE’S STANDEFER
OBJECTIONS TO THREE QUESTIONS IN VOIR DIRE, SUCH ERROR WAS
HARMLESS EVEN THOUGH IT DENIED PETITIONER’S RIGHT TO
INTELLIGENTLY EXERCISE HIS PEREMPTORY CHALLENGES
Ground 2………………………………………………………………………6
THE COURT OF APPEALS ERRED IN THEIR INABILITY TO
DETERMINE WHETHER VOIR DIRE QUESTIONS WERE
IMPROPER COMMITMENT QUESTIONS DUE TO THE
CONFUSION WROUGHT BY THE STANDEFER STANDARD
Conclusion and Prayer for Relief………………………………………….11
Certificate of Service………………………………………………………12
Certificate of Compliance………………………………………………....12
Appendix…………………………………………………………………..13
EXHIBIT A: Second Court of Appeals’ March 5, 2015, published,
Opinion
EXHIBIT B: Voir Dire questions
ii
TABLE OF AUTHORITIES
Cases
Atkins v. State, 951 S.W.2d 787 (Tex. Crim. App. 1997) ............................................................................... 4
Barajas v. State, 93 S.W.3d 36, 45 (Tex. Crim App. 2002) ........................................................................... 7
Belcher v. State, 96 Tex. Crim. 382, 257 S.W. 1097 (1924) .......................................................................... 5
Bowser v. State, 865 S.W.2d 482 (Tex. App. – Corpus Christi 1993, no. pet.) .............................................. 4
Burress v. State, 20 S.W.3d 179 (Tex. App. – Texarkana 2000, pet. ref’d) ................................................4, 6
Castillo v. State, 913 S.W.2d 529 (Tex. Crim. App. 1995) ............................................................................ 7
Clemments v. State, 940 S.W.2d 207 (Tex. App. – San Antonio 1996, pet. ref’d) ......................................... 5
Connors v. United States, 158 U.S. 408(1895)............................................................................................... 5
Contreras v. State, 56 S.W.3d 274 (Tex. App. –Houston [14th Dist.] 2001, pet. ref’d).................................. 5
De La Rosa v. State, 414 S.W.2d 668 (Tex. Crim. App. 1967) ...................................................................... 5
Delrio v. State, 840 S.W.2d 443 (Tex. Crim. App. 1992) .............................................................................. 5
Duncan v. State, 79 Tex. Crim. 206, 184 S.W. 195 (1916) ............................................................................ 5
Everitt v. State, 407 S.W.3d 259 (Tex. Crim. App. 2013)……………………………………………………4
Ex Parte McKay, 819 S.W.2d 478 (Tex. Crim. App. 1990) ........................................................................... 4
Franklin v. State, 138 S.W.3d 351(Tex. Crim. App. 2004) .........................................................................4, 5
Garrett v. State, 851 S.W.2d 853 (Tex. Crim. App. 1995) ............................................................................. 7
Garza v. State, No. 08-12-00149-CR (Tex. App. – El Paso, delivered December 19th, 2013) ...................... 4
Gonzales v. State, 2 S.W.3d 600 (Tex. App. – Texarkana 1999, pet. ref’d) ................................................4, 6
Hernandez v. State, 536 S.W.2d 947 (Tex. Crim. App. 1978) ....................................................................... 7
Holmes v. State, 52 Tex. Crim. 353, 106 S.W. 1160 (1908) .......................................................................... 5
Johnson v. State, 43 S.W.3d 1 (Tex. Crim. App. 2001) ................................................................................. 5
Linnell v. State, 935 S.W.2d 426 (Tex. Crim. App. 1996) ............................................................................. 6
Mathis v. State, 167 Tex. Crim. 627, 322 S.W.2d 629 (Tex. Crim. App. 1959) ........................................... 4
McGee v. State, 35 S.W.3d 294 (Tex. App. –Texarkana 2001, pet. ref’d) ..................................................... 5
Moore v. State, No. 04-12-00490-CR (Tex. App. – San Antonio, delivered June 19, 2013) (not designated
for publication) ........................................................................................................................................... 4
Nunfio v. State, 808 S.W.2d 482 (Tex. Crim. App. 1991) .............................................................................. 7
Rosales-Lopez v. United States, 451 U.S. 182 (1981) .................................................................................... 5
Shiply v. State, 790 S.W.2d 604 (Tex. Crim. App. 1990) ............................................................................... 4
Standefer v. State, 59 S.W.3d 177 (Tex. Crim App. 2001) ............................................................................ 7
Whitemon v. State, No. 02-13-00380-CR (Tex. App. – Fort Worth, delivered March 5th, 2015 ........... passim
Willkinson v. State, 120 Tex. Crim. 284, 47 S.W.2d 819 (1932).................................................................... 5
Rules
Rule 9.4(i)(2) of the Texas Rules of Appellate Procedure.............................................................................12
Tex. R. App. Pro. 66.3 .................................................................................................................................2, 6
Treatises
John R. Gillespie, Fear of Commitment? In Standefer v. State the Texas Court of Criminal Appeals
Clarifies the Role of Commitment Questions in Jury Selection in Criminal Trials, 54 Baylor L. rev. 581,
601 (2002) .................................................................................................................................................. 7
Constitutional Provisions
Tex. Const., art. I, sec. 10 ............................................................................................................................... 4
Tex. Const., art. I, sec. 15 ............................................................................................................................4, 5
U.S. Const., Amend VI ................................................................................................................................4, 5
U.S. Const., Amend XIV ................................................................................................................................ 4
iii
Statement Regarding Oral Argument
Petitioner believes oral argument would assist this Court in the discussion and
exploration of the issues presented. Because this petition presents important issues of
jurisprudential value, its disposition will have significant impact on the bench and bar of
the State of Texas. Therefore, Petitioner respectfully requests the opportunity to
participate in oral argument in the instant case.
Statement of the Case
This is an appeal from a jury trial on a two count indictment for simple
Possession and Possession with Intent to Deliver a Controlled Substance of Four Grams
or more, but less than 200 Grams, Namely Cocaine. CR- 5. Petitioner plead not guilty to
both counts and the jury found him guilty of only the simple possession. CR- 77. After a
sentencing hearing before the court, in which Petitioner’s punishment was enhanced to
habitual status, the judge assessed punishment at 35 years’ incarceration in the
Institutional Division of Texas Department of Criminal Justice. CR – 77. Petitioner
timely filed written notice of appeal and the trial court certified his right of appeal. CR –
82 - 83.
Statement of Procedural History
On May 6, 2014, Petitioner’s brief was timely filed raising three points of error. On
March 5, 2015, the Second Court of Appeals found error in the denial of three voir dire
questions, but held the error harmless and denied the remaining points of error to affirm
iv
the conviction. 1 A Motion for Rehearing was not filed. This court granted an extension
of time to file this petition for discretionary review which is presently due on May 6th,
2015, and will be timely filed.
1
Whitemon v. State, No. 02-13-00380-CR (Tex. App. – Fort Worth, delivered March 5th,
2015 (Attached as Appendix Exhibit A).
v
Grounds Presented for Review
GROUND ONE:
THE COURT OF APPEALS ERRED IN FINDING THAT, ALTHOUGH THE TRIAL
COURT ERRED IN SUSTAINING THE STATE’S STANDEFER OBJECTIONS TO
THREE QUESTIONS IN VOIR DIRE, SUCH ERROR WAS HARMLESS EVEN
THOUGH IT DENIED PETITIONER’S RIGHT TO INTELLIGENTLY EXERCISE HIS
PEREMPTORY CHALLENGES
GROUND TWO:
THE COURT OF APPEALS ERRED IN THEIR INABILITY TO
DETERMINE WHETHER VOIR DIRE QUESTIONS WERE IMPROPER
COMMITMENT QUESTIONS DUE TO THE CONFUSION WROUGHT BY
THE STANDEFER STANDARD
1
Argument Amplifying Reasons for Granting Review
Ground 1: THE COURT OF APPEALS ERRED IN FINDING THAT, ALTHOUGH
THE TRIAL COURT ERRED IN SUSTAINING THE STATE’S STANDEFER
OBJECTIONS TO THREE QUESTIONS IN VOIR DIRE, SUCH ERROR WAS
HARMLESS EVEN THOUGH IT DENIED PETITIONER’S RIGHT TO
INTELLIGENTLY EXERCISE HIS PEREMPTORY CHALLENGES
REASONS FOR GRANTING REVIEW
1) Review should be granted pursuant to Tex. R. App. Pro.66.3 (c) and (a) because
the court of appeals has decided an important question of state and federal law-
i.e., that it is harmless to erroneously deny a proper voir dire question- in a way
that conflicts with the applicable decisions of the Court of Criminal Appeals, the
United States Supreme Court and other courts of appeals’ decisions.
2) Review should be granted pursuant to Tex. R. App. Pro. 66.3 (f) because the court
of appeals has so far departed from the accepted and usual course of judicial
proceedings in their incorrect application of the law regarding harm analysis
where the defense has been prevented from the intelligent exercise of peremptory
challenges through the erroneous denial of the right to ask a proper question so as
to call for the exercise of this Court’s supervisory power.
3) Review should be granted pursuant to Tex. R. App. Pro. 66.3 (b) because the court
of appeals has decided an important question of state law i.e., the denial of proper
defense questions in voir dire under Standefer is harmless error even though it
violates constitutional rights, that is an important issue that has not been, but
desperately needs to be, settled and clarified by this Court.
In the instant case, trial counsel was questioned the venire regarding their ability to follow
the law defining “possession” of drugs and “mere presence”. R. Vol. II – 90 – 91 (Voir Dire
questioning attached as exhibit B). Counsel queried:
Mr. Pitzer: Do you think a person should be guilty if they walk in a house unaware that
there’s controlled substances?
2
Mr. Whelchel: Objection.
The Court: I couldn’t hear. Can you restate it?
Mr. Pitzer: I was asking Mr. Cassaday if he believed that a person should be guilty if he
walked into a house of someone else that contained controlled substances, but I’ll - - I’ll
rephrase that.
The Court: Your objection - - okay. He’s withdrawn the question.
Mr. Pitzer: If a person walks into a house, somebody else’s house and there’s controlled
substance in there, do you think that means they’re automatically guilty?
Mr. Whelchel: Objection, improper under Standefer.
The Court: Sustained. Rephrase.
Mr. Pitzer: Do you think that the State would have to show more connection than just
being in the same house with a controlled substance to find someone guilty?
Mr. Whekchel: Objection under Standefer.
The Court: Sustained. Rephrase.
Mr. Pitzer: Would you agree that the State has to show for possession that a person
intentionally and knowingly had the substance or exercised control over it?
Prospective Juror: Yes.
Mr. Pitzer: Okay. The fact that there in mere proximity of it wouldn’t necessarily be
enough to convince you?
Mr. Welchel: Objection under Standefer.
The Court: Sustained.
R. Vol. II – 90 – 91 (attached as Exhibit B).
3
The lower court, in their own words “assumedly” held the following three of these
questions to be proper; thus, finding the trial court erred in denying the questions:
1- If a person walks into a house, somebody else’s house[,] and there’s controlled
substance in there, do you think that means they’re automatically guilty?
2- Do you think the State would have to show more connection than just being in
the same house with a controlled substance to find someone guilty?
3- The fact that the[y are] in mere proximity of it wouldn’t necessarily be enough
to convince you? 2
The court then stated, “ [w]e do not need to enter the fray concerning whether the lawyers
may ask questions that enable them to exercise peremptory strikes with some degree of
intelligence because even if we assume that the trial court erred by sustaining the State’s
objections to Appellant’s … questions , we hold that such error was harmless. 3 Further, the
court held that trial counsel is required to object to the court’s sustaining of the state’s objection
in order to preserve error. 4 Thus, because counsel did not object to the court repeatedly
sustaining the state’s Standefer objection, error was waived. 5 These holdings directly ignore and
conflicts with this Honorable Court’s opinions, other court of appeals’ opinions, longstanding
Supreme Court precedent and state and federal constitutional guarantees. 6
2
Whitemon v. State, No. 02-13-00380-CR (Tex. App. – Fort Worth, delivered March 5th, 2015) (Attached as
Appendix Exhibit A) (emphasis supplied).
3
Id.at 11.
4
Id. at 11.
5
Interestingly enough, the court cites Everitt v. State, 407 S.W.3d 259 (Tex. Crim. App. 2013) for this proposition.
However, Everitt stands for an entirely different and counter position. In Everitt, this Court held the lower court
erred in finding no preservation of error stating, “[t]he court of appeal’s parsing of Appellant’s objections is the kind
of hyper-technical analysis that we have repeatedly rejected.”
6
Tex. Const., art. I, sec. 10, 15; U.S. Const., Amend VI, XIV; Burress v. State, 20 S.W.3d 179 (Tex. App. –
Texarkana 2000, pet. ref’d); Bowser v. State, 865 S.W.2d 482 (Tex. App. – Corpus Christi 1993, no. pet.);
Clemments v. State, 940 S.W.2d 207 (Tex. App. – San Antonio 1996, pet. ref’d); Gonzales v. State, 2 S.W.3d 600
(Tex. App. – Texarkana, 1999 pet. ref’d); Mathis v. State, 167 Tex. Crim. 627, 322 S.W.2d 629 (Tex. Crim. App.
1959); Atkins v. State, 951 S.W.2d 787 (Tex. Crim. App. 1997); Shiply v. State, 790 S.W.2d 604 (Tex. Crim. App.
1990); Ex Parte McKay, 819 S.W.2d 478 (Tex. Crim. App. 1990); Franklin v. State, 138 S.W.3d 351 (Tex. Crim.
4
The law is replete; an accused’s state and federal rights to representation by effective
counsel, due process and the right to a fair and impartial jury, includes counsel’s right to question
the members of the jury panel in order to intelligently use peremptory challenges. 7 This is not a
‘fray’ but a guarantee of constitutional magnitude. Perhaps the greatest goal of voir dire is to
afford the accused the right to a fair and impartial jury, a right deeply rooted in the Sixth
Amendment and indelibly attached to Due Process within the Texas constitution and decades of
its jurisprudence. 8 Where a question is proper and the accused is prevented from asking it, harm
is presumed because the accused could not intelligently exercise his peremptory challenges
without the information gained from the answer. 9
Voir dire is the single process by which bias and prejudice which could prevent a fair,
impartial consideration of the evidence and the law, is exposed. Thus, “if a question is proper,
the denial of an answer prevents the intelligent exercise of peremptory challenges and harm is
shown.” 10 There is no requirement for counsel to further object to the court’s action. To hold
otherwise would render Standefer wholly unconstitutional in application. The lower court
completely disregarded this fundamental concept of law. In this regard, it has so minimized and
incorrectly applied the law regarding implicit harm as required by the state and federal
App. 2004); De La Rosa v. State, 414 S.W.2d 668 (Tex. Crim. App. 1967); Connors v. United States, 158 U.S.
408(1895); Rosales-Lopez v. United States, 451 U.S. 182 (1981).
7
Id.; Contreras v. State, 56 S.W.3d 274 (Tex. App. –Houston [14th Dist.] 2001, pet. ref’d); McGee v. State, 35
S.W.3d 294 (Tex. App. –Texarkana 2001, pet. ref’d).
8
Id.; U.S. Const. amend. VI; Tex. Const. art. I, sec. 15; Franklin v. State, 138 S.W.3d 351(Tex. Crim. App. 2004);
Duncan v. State, 79 Tex. Crim. 206, 184 S.W. 195 (1916); Holmes v. State, 52 Tex. Crim. 353, 106 S.W. 1160
(1908); Delrio v. State, 840 S.W.2d 443 (Tex. Crim. App. 1992).
9
Id.; Bowser, 865 S.W.2d at 485 – 486; Clemments, 940 S.W.2d at 210; Willkinson v. State, 120 Tex. Crim. 284, 47
S.W.2d 819 (1932); Johnson v. State, 43 S.W.3d 1 (Tex. Crim. App. 2001); Belcher v. State, 96 Tex. Crim. 382, 257
S.W. 1097 (1924) .
10
Id.; Clemments, 940 S.W.2d at 210 (emphasis supplied).
5
constitution, case law from other courts of appeals, the United States Supreme Court and this
Court as to require corrective intervention of this Court 11.
For all the foregoing reasons, the court of appeals erroneous diminished the Due Process
requisites of a fair trial and the right to effective assistance of counsel in holding harmless the
erroneous exclusion of proper voir dire questions requiring review and reversal of this Court.
Review should further be granted because the question of whether it is harmless to deny a proper
voir dire question is an important question of law decided by the court in a way that conflicts
with many decisions of the Court of Criminal Appeals, the United States Supreme Court and
other courts of appeals’ decisions. Finally, review is most earnestly requested because the court
of appeals has decided an important question of state law i.e., whether the denial of proper
defense questions in voir dire under Standefer is harmless error, even though it violates
constitutional rights, which is an important issue that has not been, but desperately needs to be,
settled and clarified by this Court.
Ground 2: THE COURT OF APPEALS ERRED IN THEIR INABILITY TO
DETERMINE WHETHER VOIR DIRE QUESTIONS WERE IMPROPER
COMMITMENT QUESTIONS DUE TO THE CONFUSION WROUGHT BY THE
STANDEFER STANDARD
REASONS FOR GRANTING REVIEW
1)Review should be granted pursuant to Tex. R. App. Pro. 66.3 (b) because the court of
appeals has decided an important question of state law i.e., what exactly is an
impermissible commitment question under Standefer, in such a convoluted manner that it
exemplifies this is an issue that has not been, but desperately needs to be, settled and
clarified by this Court.
11
Id.; See Gonzales v. State, 2 S.W.3d 600 (Tex. App. – Texarkana 1999, pet. ref’d); Linnell v. State, 935 S.W.2d
426 (Tex. Crim. App. 1996); Burress v. State, 20 S.W.3d 179 (Tex. App. – Texarkana 2000, pet. ref’d).
6
2)Review should be granted pursuant to Tex. R. App. Pro.66.3 (c) and (a) because the
court of appeals has decided an important question of state and federal law- i.e., what
really is an erroneous Standefer commitment question - in a way that conflicts with the
applicable decisions of the Court of Criminal Appeals and other courts of appeals’
decisions.
3)Review should be granted pursuant to Tex. R. App. Pro. 66.3 (f) because the court of
appeals has so far departed from the accepted and usual course of judicial proceedings in
their incorrect application of the law of Standefer so as to call for the exercise of this
Court’s supervisory power.
In Standefer v. State, this Court, in a 5-4 decision with two judges concurring, attempted to
simplify the practice of deciding which types of commitment questions are proper 12. Despite best
intentions, the opinion ultimately, and in real world application, has exacted quite the opposite
effect. The Standefer test has simply generated complete confusion and, thereby, the deprivation
of constitutional rights. 13
In the instant case, the court of appeals quite literally “presumably” finds three of the
questions defense counsel proffered in voir dire to not be improper commitment questions under
Standefer. 14 However, because it is extremely difficult to discern the lower court’s quite
convoluted reasoning as to why the questions do or do not meet the Standefer criteria, it is
12
Standefer v. State, 59 S.W.3d 177 (Tex. Crim App. 2001).
13
See Standefer v. State, 59 S.W.3d at 185 (Price, J., dissenting) and at 187 (Johnson, J., joined by Meyers, Price, &
Holcomb, JJ., dissenting); Standefer, 59 S.W.3d at 183 n. 28; Hernandez v. State, 536 S.W.2d 947 (Tex. Crim. App.
1978); Barajas v. State, 93 S.W.3d 36, 45 (Tex. Crim App. 2002) (overruling Nunfio v. State, 808 S.W.2d 482 (Tex.
Crim. App. 1991) (Meyers & Holcomb, JJ., dissenting); Castillo v. State, 913 S.W.2d 529 (Tex. Crim. App. 1995);
Garrett v. State, 851 S.W.2d 853 (Tex. Crim. App. 1995); John R. Gillespie, Fear of Commitment? In Standefer v.
State the Texas Court of Criminal Appeals Clarifies the Role of Commitment Questions in Jury Selection in
Criminal Trials, 54 Baylor L. rev. 581, 601 (2002)(Nunfio decision ‘set forth an unworkable standard that provided
no reasonable limitation on the parties’ ability to ask questions”).
14
Whitemon v. State, No. 02-13-00380-CR (Tex. App. – Fort Worth, delivered March 5th, 2015) (Opinion attached
as Exhibit A)
7
difficult to even know what the courts’ actual findings were. In this regard, the lower court’s
opinion bears testament to the mass confusion wrought by Standefer and its progeny. 15
The lower court stated as to the question “If a person walks into a house, somebody else’s
house[,] and there’s controlled substance in there, do you think that means they’re automatically
guilty?” :
We cannot say that this is a question that seeks to commit a juror improperly to a specific
set of facts or, that is, to treating a specific set of facts in a particular way. It appears to be
a question about mere presence. … It may, however, run afoul of the prohibition against
asking how a juror will respond to the specific facts of the case at bar. … The question
may inquire about venire member’s reaction to the specific facts of this case rather than
his ability to follow the law, as discussed in Atkins. 16
This reasoning reflects the fundamental confusion and misunderstanding and, thereby
misapplication, that plagues the Standefer standard and is exhibited by the vast majority of
litigants and judges throughout this state. 17The lower court appears to honestly not know whether
this question is improper under Standefer; thus, it surmises it “may” run afoul or “may” inquire
of fact as forbidden by Atkins. 18 It goes on to simply “assume” the trial court erred in sustaining
the prosecutor’s Standefer objection. 19
As to the second question, “ [d]o you think that the State would have to show more
connection than just being in the same house with a controlled substance to find someone
guilty?” the court’s entire reasoning was as follows:
15
See note 11.
16
Whitemon v. State, No. 02-13-00380-CR (Tex. App. – Fort Worth, delivered March 5th, 2015) (Attached as
Appendix Exhibit A).
17
See note 11.
18
Whitemon v. State, No. 02-13-00380-CR (Tex. App. – Fort Worth, delivered March 5th, 2015) (Attached as
Appendix Exhibit A).
19
Id.
8
This is a closer inquiry, because the question includes the fact that the contraband is in a
habitation but also an inquiry into the law upon which Appellant was entitled to rely:
mere presence is not sufficient to support conviction. 20
Although the court finds this a “closer inquiry”, the questions remains; is it a proper or improper
question under Standefer? The court never explains further. Once again, this bears testament to
the instant court’s, as well as numerous others, who are left drifting in a sea of confusion as to a
workable understanding and application of the Standefer standard. 21
Lastly, as to the question “The fact that the[y are] in mere proximity of it wouldn’t
necessarily be enough to convince you?”, the court reasoned,
This final question does not inquire whether the venire can follow the law. Rather, this
question asks what it would take to convince the venire member in the case at bar. This question
therefore improperly inquires into how the venire member would treat the evidence expected to
be presented at trial. 22
Once again, this is the sum total of the legal reasoning of the court. Although it appears the court
is finding this an improper commitment question, the court does not state so. Nor does the court
properly address the Standefer criteria in application and wholly ignores the issue of whether the
question includes facts that lead to a proper challenge for cause. Nonetheless, the court then goes
on to perplexingly “assume” the trial court erred in sustaining the state’s objection. 23
The sheer confusion in the court’s analysis reinforces the fact the Standefer rule is too
complex and unworkable in application, so much so, the bench and bar alike are left awash in
conflict and misapplication. 24 It is well time this Honorable Court addresses this issue and
20
Id.
21
See note 11.
22
Id.
23
Id.
24
See note 11.
9
revisit Standefer and its progeny to create a workable, bright-line rule for proper voir dire
questions.
Further, and of greatest importance, the very fact Standefer evokes such immense
confusion in application as to what questions are permissible constantly jeopardizes
constitutional rights. 25 The right to a fair and impartial jury is deeply rooted in the efficacy of the
voir dire process and the right to querie prospective jurors in order to intelligently exercise
peremptory strikes and challenges for cause. This process is wholly vulnerable to counsels’
ability to competently question jurors. When both bench and bar are continuously, fundamentally
confused as to what questions are proper, the result is a process fraught with conflict, mistakes
and injustice.
For all the foregoing reasons, this petition for discretionary review should be granted.
The court of appeals erred in their inability to discern whether voir dire questions were improper
commitment questions due to the confusion caused by the Standefer standard. This is an
immensely important question of law that has caused continuously conflicting case law, court
rulings and trial objections and resulted in constitutional infringements and, as such, is an issue
that desperately needs to be addressed, settled and clarified by this Court. Lastly, review should
be granted because the court of appeals has so far departed from the accepted and usual course of
judicial proceedings in their incorrect application of the law of Standefer so as to call for the
exercise of this Court’s supervisory power.
25
See notes 4, 6 & 11.
10
Conclusion and Prayer for Relief
WHEREFORE, ALL PREMISES CONSIDERED, petitioner respectfully
prays this Court grant review and, after a full briefing on the merits, issue an opinion
resolving this important issue so that the bench and bar of this state will know how to
address similar issues in the future as well as reverse the Second Court of Appeals’
findings of harmless error. Appellant additionally prays for such other and further relief
as he may show himself deserving, at law and in equity.
Respectfully submitted,
Lisa Mullen
___________________________
/s/ Lisa Mullen
Attorney at Law
3149 Lackland Road, Suite 102
Fort Worth, Texas 76116
(817) 332-8900
State Bar No. 03254375
Lisa@MullenLawOffice.com
11
Certificate of Service
I hereby certify that a true copy of this document was served on May 6th, 2015, by
mail delivery upon Assistant District Attorney Charles Mallin, Appellate Section, Tarrant
County District Attorney’s Office, 401 West Belknap, Fort Worth, Texas 76104, and by
mail delivery upon the Office of the State Prosecuting Attorney, P.O. Box 13046, Capitol
Station, Austin, Texas 78711.
Lisa Mullen
___________________________________
/s/ Lisa Mullen
Attorney at Law
CERTIFICATE OF COMPLIANCE
I, Lisa Mullen, pursuant to Rule 9.4(i)(2)(D) of the Texas Rules of Appellate
Procedure, do hereby certify the word count of the applicable portions of this Petition for
Discretionary Review is 4,395 words and within the 4,500 word limit as required by the
rules.
Lisa Mullen
________________________
/s/ Lisa Mullen
Attorney at Law
3149 Lackland Road, Suite 102
Fort Worth, Texas 76116
(817) 332-8900
State Bar No. 03254375
Lisa@MullenLawOffice.com
12
13
14
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00380-CR
ADRIAN LEE WHITEMON APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1209550D
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OPINION
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A jury convicted Appellant Adrian Lee Whitemon of possession of four or
more grams of cocaine but less than 200 grams. The trial court found the
enhancement paragraph to be true and sentenced him to thirty-five years’
confinement. In three points, Appellant contends that the trial court erred by
improperly limiting his voir dire questions, by denying his motion to suppress the
arrest-and-search warrant, and by admitting evidence of his prior bad acts.
Because the trial court committed no reversible error, we affirm the trial court’s
judgment.
Motion to Suppress
The police executed a no-knock search-and-arrest warrant and found
drugs, money, and several people, including Appellant, inside the apartment. In
his second point, Appellant contends that the trial court erred by denying his
motion to suppress the search-and-arrest warrant and by admitting the evidence
obtained via the warrant. He argues that although the warrant contained a
description of “Cush” or “Kush,” the person to be arrested, the supporting affidavit
contained no description, not even a statement of the gender of the person to be
arrested. In addition to arguing that the warrant fails for lack of specificity,
Appellant also argues that it fails for lack of corroboration.
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. 1 We give almost total deference to a trial court’s
rulings on questions of historical fact and application-of-law-to-fact questions that
turn on an evaluation of credibility and demeanor, but we review de novo
application-of-law-to-fact questions that do not turn on credibility and demeanor. 2
1
Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman
v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
2
Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex.
Crim. App. 2005); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.
2002).
2
We must uphold the trial court’s ruling if it is supported by the record and correct
under any theory of law applicable to the case even if the trial court gave the
wrong reason for its ruling. 3
In assessing the sufficiency of an affidavit for an arrest warrant or search
warrant, the reviewing court is limited to the four corners of the affidavit. 4 The
reviewing court should interpret the affidavit in a common sense and realistic
manner, recognizing that the magistrate was permitted to draw reasonable
inferences. 5 We must defer to the magistrate’s finding of probable cause if the
affidavit demonstrates a substantial basis for his conclusion. 6
Appellant points out that article 15.02 of the Texas Code of Criminal
Procedure requires an arrest warrant to “specify the name of the person whose
arrest is ordered, if it be known, if unknown, then some reasonably definite
description must be given.” 7 Further, as both sides note, the law is well
established that information provided by an informant must contain some indicia
3
State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007);
Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003), cert. denied,
541 U.S. 974 (2004).
4
Jones v. State, 833 S.W.2d 118, 123 (Tex. Crim. App. 1992), cert. denied,
507 U.S. 921 (1993).
5
Davis v. State, 202 S.W.3d 149, 154 (Tex. Crim. App. 2006).
6
Rodriguez v. State, 232 S.W.3d 55, 64 (Tex. Crim. App. 2007).
7
Tex. Code Crim. Proc. Ann. art. 15.02 (West 2005).
3
of reliability or be reasonably corroborated by police before it can be used to
justify a search. 8
In denying the motion to suppress, the trial court made oral findings of fact
and conclusions of law:
All right. After reviewing State’s Exhibit No. 1 and hearing
testimony and cross-examination, the Court, after doing so,
concludes as a matter of law and matter of fact that the Defendant’s
motion fails.
The warrant does establish probable cause that at 2377
Dalworth, Apartment 235, Grand Prairie Texas, Tarrant County, . . .
Texas, that Grand Prairie police officers did have probable cause to
request and secure a warrant for that location on the basis that the
information that’s contained therein, upon which the officers went
into the location and made a number of discoveries that have been
identified as State’s Exhibit 2 through 18, inclusively, and State’s
Exhibit 22 that have been submitted and received as conditional.
Still relying on other additional information that still needs to
be brought forward, it’s still the conclusion of the Court that the
information, the evidence obtained therein, is admissible and was
done in conformity of the Fourth and Fourteenth Amendments of the
United States Constitution, Article 1, Section 9 of the State
Constitution.
Therefore, the Defendant’s motion should be and is hereby
denied.
Are there any additional findings of fact and conclusions of
law, State?
[Prosecutor]: And that all items that were seized from that
apartment on that date and time are admissible as a matter of law
and fact.
8
Illinois v. Gates, 462 U.S. 213, 242, 103 S. Ct. 2317, 2334 (1983).
4
THE COURT: That is correct. And that’s why I identified them
specifically. If there are additional items that you intend to offer that
were not—have not been presented to the Court thus far, that would
also be admissible and that they were collected lawfully.
The search-and-arrest warrant was based on two affidavits. The first
affidavit included the name Kush or Cush and a physical description of this
person: “B/M 5’2”–5’5” 145–60 lbs, BLK/BRO, Tear drop tattoos on near right
eye and multiple tat[t]oos all upper torso and arms.” This is a “reasonably
definite description” under article 15.02. 9
The affidavits show that the police used their informant to make two
controlled buys. Their information was that Cush or Kush was selling crack
cocaine out of the apartment. One affidavit contains the statement that the
confidential informant had, in the past, provided information that “ha[d] led to the
execution of several narcotic search warrants and the arrest of several narcotic
dealers within the city limits of Grand Prairie.” The affidavit also describes the
procedure that the police used for sending the informant to make the controlled
buys. Thus, the affidavits provide some indicia of reliability of the informant.
Based on the contents of both affidavits and applying the appropriate standard of
review, 10 we hold the affidavits sufficient to support the trial court’s probable
9
See Tex. Code Crim. Proc. Ann. art. 15.02; Walthall v. State, 594 S.W.2d
74, 80–81 (Tex. Crim. App. [Panel Op.] 1980).
10
See Gates, 462 U.S. at 242, 103 S. Ct. at 2334; Moreno v. State, 415
S.W.3d 284, 287 (Tex. Crim. App. 2013).
5
cause finding and sufficient to support the challenged warrant. The trial court
therefore did not err by denying Appellant’s motion to suppress. Because of our
conclusion that the trial court properly denied Appellant’s motion to suppress, we
do not address the State’s contention that Appellant lacked standing to challenge
the police entry into the apartment he claimed to be merely visiting. 11 We
overrule Appellant’s second point.
Limitations on Voir Dire
In his first point, Appellant argues that the trial court abused its discretion
by preventing the defense from asking proper voir dire questions. In Standefer v.
State, 12 a 5-4 decision with two judges concurring with the majority, the Texas
Court of Criminal Appeals held,
[A] question is a commitment question if one or more of the possible
answers is that the prospective juror would resolve or refrain from
resolving an issue in the case on the basis of one or more facts
contained in the question.
....
[F]or a commitment question to be proper, one of the possible
answers to that question must give rise to a valid challenge for
cause. 13
Before Standefer, the emphasis was not on whether the question was a
commitment question but on whether the commitment was to treat the facts of
11
See Tex. R. App. P. 47.1.
12
59 S.W.3d 177, 180 (Tex. Crim. App. 2001).
13
Id. at 180–82.
6
the specific case on trial in a particular manner. Additionally, the law recognized
that a legitimate purpose of posing voir dire questions was not solely to seek
grounds for valid challenges for cause, but also to enable the litigant to
intelligently exercise peremptory challenges. As our sister court in San Antonio
explained almost twenty years ago,
A voir dire question is proper if its purpose is to discover a
venire member’s view on an issue applicable to the case. Voir dire
is intended to expose bias or prejudice which might prevent full and
fair consideration of the evidence to be presented at trial. Therefore,
if a question is proper, the denial of an answer prevents the
intelligent exercise of peremptory challenges and harm is shown. 14
And four years before Standefer, the Texas Court of Criminal Appeals explained
in Atkins v. State, 15
In Shipley,[16] we held that control of the voir dire examination is
within the sound discretion of the trial judge and that the trial judge is
given wide discretion in this area. Although this is true, a trial judge
must not exceed his discretion by denying a proper question or
allowing an improper question. And in a case such as this, a trial
judge must determine if the hypothetical is used to explain the law or
to commit the venire to specific facts of the case. To find that the
question was used for anything other than to explain the law would
be an abuse of discretion and would constitute reversible error. 17
14
Clemments v. State, 940 S.W.2d 207, 210 (Tex. App.—San Antonio
1996, pet. ref’d) (citing Ex parte McKay, 819 S.W.2d 478, 482 (Tex. Crim. App.
1990)).
15
951 S.W.2d 787, 790 (Tex. Crim. App. 1997).
16
Shipley v. State, 790 S.W.2d 604 (Tex. Crim. App. 1990).
17
Atkins, 951 S.W.2d at 790.
7
In Atkins, a case in which a defendant was being tried for possession of a
residue amount of cocaine found in a crack pipe, the questions were, “Is there
anybody who would be unable to convict somebody for possession of a residue
amount of cocaine . . . ?” and “Is there anyone who would be unable to convict in
this type of circumstance?” 18 The Atkins court held,
This type of questioning, using a hypothetical or otherwise, is
improper and serves no purpose other than to commit the jury to [a]
specific set of facts prior to the presentation of any evidence at
trial. 19
In the case now before this court, Appellant asked the following questions:
1. If a person walks into a house, somebody else’s house[,] and
there’s [a] controlled substance in there, do you think that means
they’re automatically guilty?
We cannot say that this is a question that seeks to commit a juror improperly to
a specific set of facts or, that is, to treating a specific set of facts in a particular
way. It appears to be a question about mere presence:
[W]hen the theory of prosecution is that the accused or another
acted together in possessing a narcotic drug, the evidence must
affirmatively link the accused to the contraband in such a manner
that it can be concluded that he had knowledge of the contraband
as well as control over it. Mere presence alone at a place where the
contraband is being used or possessed by others does not justify a
finding of joint possession, or constitute one a party to an offense. 20
18
Id. at 789.
19
Id.
20
Martin v. State, 753 S.W.2d 384, 386 (Tex. Crim. App. 1988) (citations
omitted).
8
It may, however, run afoul of the prohibition against asking how a juror will
respond to the specific facts of the case at bar. Appellant’s defense was that he
walked into someone else’s apartment where drugs were found, that he was
merely present when the police arrived, and that he did not knowingly or
intentionally exercise care, custody, or control over the contraband. The
question may inquire about the venire member’s reaction to the specific facts of
this case rather than his ability to follow the law, as discussed in Atkins. 21
2. Do you think that the State would have to show more
connection than just being in the same house with a controlled
substance to find someone guilty?
This is a closer inquiry, because the question includes the fact that the
contraband is in a habitation but is also an inquiry into the law upon which
Appellant was entitled to rely: mere presence is not sufficient to support
conviction. 22
3. Would you agree that the State has to show for
possession that a person intentionally and knowingly had the
substance or exercised control over it?
This question is a commitment question, but it is also a statement of the law upon
which Appellant was entitled to rely. 23 As the Standefer court explained,
21
See Atkins, 951 S.W.2d at 789–90.
22
See id.; Martin, 753 S.W.2d at 386.
23
See Atkins, 951 S.W.2d at 789–90; Martin, 753 S.W.2d at 386.
9
[T]he inquiry for improper commitment questions has two steps: (1)
Is the question a commitment question, and (2) Does the question
include facts—and only those facts—that lead to a valid challenge
for cause? If the answer to (1) is “yes” and the answer to (2) is “no,”
then the question is an improper commitment question, and the trial
court should not allow the question. 24
Under the Standefer test, the question properly inquires into the venire member’s
ability to follow the law on which Appellant was entitled to rely without injecting
specific facts of the case into the inquiry and could lead to a challenge for
cause. 25 Appellant was allowed to ask this question, and the prospective juror
answered, “Yes.” Appellant does not complain that he wanted to ask that
question of other members of the venire.
4. Okay. The fact that the[y are] in mere proximity of it
wouldn’t necessarily be enough to convince you?
This final question does not inquire whether the venire can follow the law.
Rather, this question asks what it would take to convince the venire member in
the case at bar. This question therefore improperly inquires into how the venire
member would treat the evidence expected to be presented at trial. 26
We do not need to enter the fray concerning whether the lawyers may ask
questions that enable them to exercise peremptory strikes with some degree of
intelligence because even if we assume that the trial court erred by sustaining
24
Standefer, 59 S.W.3d at 182–83.
25
See id.
26
See id.; Atkins, 951 S.W.2d at 789–90.
10
the State’s objections to Appellant’s first, second, and fourth questions set out
above, we hold that such error was harmless.
Appellant argues that by sustaining the objections to his first, second, and
fourth questions, the trial court violated his constitutional rights to counsel, to be
heard, to a trial by a fair and impartial jury, and to due process. He does not,
however, direct us to any portion of the record at which he raised these
constitutional claims before the trial court. They are therefore not preserved. 27
Appellant also argues that the voir dire error alleged is of constitutional
magnitude. The Texas Court of Criminal Appeals, however, instructs us to
consider this type of voir dire error nonconstitutional error under rule of appellate
procedure 44.2(b). 28 We therefore apply rule 44.2(b) and disregard the error if it
did not affect Appellant’s substantial rights. 29
A substantial right is affected when the error had a substantial and
injurious effect or influence in determining the jury’s verdict. 30 Conversely, an
27
See Tex. R. App. P. 33.1(a); Everitt v. State, 407 S.W.3d 259, 262–63
(Tex. Crim. App. 2013); Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App.
2009); Sanchez v. State, 418 S.W.3d 302, 306 (Tex. App.—Fort Worth 2013, pet.
ref’d).
28
Sanchez v. State, 165 S.W.3d 707, 713 (Tex. Crim. App. 2005); Tex. R.
App. P. 44.2(b).
29
See Tex. R. App. P. 44.2(b); Mosley v. State, 983 S.W.2d 249, 259 (Tex.
Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999).
30
King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing
Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)).
11
error does not affect a substantial right if we have “fair assurance that the error
did not influence the jury, or had but a slight effect.” 31 In making this
determination, we review the record as a whole, including any testimony or
physical evidence admitted for the jury’s consideration, the nature of the
evidence supporting the verdict, and the character of the alleged error and how it
might be considered in connection with other evidence in the case. 32 We may
also consider the jury instructions, the State’s theory and any defensive theories,
whether the State emphasized the error, closing arguments, and even voir dire, if
applicable. 33
Even if the trial court erred in sustaining the State’s objections to the first,
second, and fourth questions set out above, the error was harmless beyond a
reasonable doubt, based on the record before us. An inability to ask those three
questions did not have substantial and injurious effect or influence in determining
the jury’s verdict, nor did it prevent Appellant’s access to information necessary
for a proper challenge for cause. All four questions before us dealt with the
venire’s ability to properly apply the law of mere presence. The third question
was allowed to be asked and answered; it inquired into the venire’s ability to
31
Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001); Johnson
v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
32
Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).
33
Id. at 355–56.
12
properly apply the law of mere presence. Nothing in the record suggests that
Appellant was prohibited from asking this question of other members of the
venire individually.
We overrule Appellant’s first point.
Extraneous Bad Acts
In his third point, Appellant argues that the trial court abused its discretion
in the guilt phase by admitting evidence of his “extraneous bad acts concerning
[his] statement to a bond officer.” An appellate court reviews a trial court’s
decision to admit evidence for an abuse of discretion. 34 A trial court abuses its
discretion in admitting evidence if that decision falls outside the wide zone of
reasonable disagreement. 35
Appellant’s defense at trial was that he was merely a visitor at the
apartment and that none of the cocaine found there belonged to him. The bond
officer testified on rebuttal that Appellant had said that his drug of choice was
cocaine. Although this testimony is clearly prejudicial (why else would the State
have offered it in rebuttal), the question is whether it is unfairly prejudicial. 36 As
the State correctly argues, any theoretical unfair prejudice did not outweigh the
34
Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004).
35
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op.
on reh’g).
36
Wheeler v. State, 67 S.W.3d 879, 888–89 (Tex. Crim. App. 2002).
13
probative value of the testimony, in light of Appellant’s defense that he did not
knowingly or intentionally possess the cocaine found in the apartment. 37 The
State was required to prove intentional and knowing possession, and the case
was a circumstantial evidence case. The bond officer’s testimony was brief and
to the point. It directly attacked Appellant’s defense and directly supported the
State’s theory of the case. The testimony was not likely to have confused the
jury or to cause the jury to wrongfully convict Appellant. 38 Additionally, as the
State argues, the statement is Appellant’s own, an admission by a party
opponent 39 as well as an admission against penal interest. 40 We therefore hold
that the probative value of the statement was not substantially outweighed by the
danger of unfair prejudice. 41 Consequently, the trial court did not abuse its
37
See Owen v. State, No. 02-03-00164-CR, 2004 WL 966323, at *6 (Tex.
App.—Fort Worth May 6, 2004, no pet.) (mem. op., not designated for
publication) (holding evidence that Owen had previously received drugs via
Fedex and had previously possessed methamphetamine admissible rebuttal
evidence to show current knowing and intentional possession of Fedex package
containing methamphetamine in face of her denial).
38
See Maranda v. State, 253 S.W.3d 762, 768 (Tex. App.—Amarillo 2007,
pet. dism’d) (holding evidence of drug use following aggravated robbery relevant
to defendant’s motive to commit robbery and that it did not confuse jury or lead
them to wrongly convict and took minimal time to develop).
39
See Tex. R. Evid. 801(E)(2).
40
See Tex. R. Evid. 803(24).
41
See Tex. R. Evid. 403.
14
discretion by admitting Appellant’s statement to the bond officer, and we overrule
Appellant’s third point.
Conclusion
Having overruled Appellant’s three points, we affirm the trial court’s
judgment.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
WALKER, J., concurs without opinion.
PUBLISH
DELIVERED: March 5, 2015
15
15
STATE VS. ADRIAN LEE WHITEMON 90
1 it's been improperly seized and not obtained by consent
2 or probable cause. So, for instance, if you believed a
3 search warrant was --
4 MR. WHELCHEL: Judge, I'm going to object.
5 That's going to be a misstatement of the law. That
6 isn't the state of the law. That's going to be a
7 question of law for you to decide. A jury's never going
8 to receive an instruction on a search warrant.
9 THE COURT: Sustained.
10 MR. PITZER: Do you think a person should
11 be guilty if they walk in a house unaware that there's
12 controlled substances?
13 MR. WHELCHEL: Objection.
14 THE COURT: I couldn't hear. Can you
15 restate it?
16 MR. PITZER: I was asking Mr. Cassady if he
17 believed that a person should be guilty if he walked
18 into a house of someone else that contained controlled
19 substances, but I'll -- I'll rephrase that.
20 THE COURT: Your objection -- okay. He's
21 withdrawn the question.
22 MR. PITZER: If a person walks into a
23 house, somebody else's house and there's controlled
24 substance in there, do you think that means they're
25 automatically guilty?
ANGIE TAYLOR ~ (817) 884-2341
OFFICIAL COURT REPORTER ~ 432ND DISTRICT COURT
STATE VS. ADRIAN LEE WHITEMON 91
1 MR. WHELCHEL: Objection, improper under
2 Standefer.
3 THE COURT: Sustained. Rephrase.
4 MR. PITZER: Do you think that the State
5 would have to show more connection than just being in
6 the same house with a controlled substance to find
7 someone guilty?
8 MR. WHELCHEL: Objection under Standefer.
9 THE COURT: Sustained. Rephrase.
10 MR. PITZER: Would you agree that the State
11 has to show for possession that a person intentionally
12 and knowingly had the substance or exercised control
13 over it?
14 PROSPECTIVE JUROR: Yes.
15 MR. PITZER: Okay. The fact that there in
16 mere proximity of it wouldn't necessarily be enough to
17 convince you?
18 MR. WHELCHEL: Objection under Standefer.
19 THE COURT: Sustained.
20 MR. PITZER: Outside of what Mr. Allan's
21 already covered, that's pretty much all I wanted to
22 touch base with all of y'all.
23 Is there anybody here that has any reason
24 that they think they couldn't sit as a fair and
25 impartial juror in this case?
ANGIE TAYLOR ~ (817) 884-2341
OFFICIAL COURT REPORTER ~ 432ND DISTRICT COURT