Sandrella Lakay Hill A/K/A Sandrella Spraglin v. State of Texas

Opinion filed March 31, 2014
In The
Eleventh Court of Appeals
__________
No. 11-12-00068-CR
__________
SANDRELLA LAKAY HILL A/K/A
SANDRELLA SPRAGLIN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 441st District Court
Midland County, Texas
Trial Court Cause No. CR39090
OPINION
Sandrella Lakay Hill a/k/a Sandrella Spraglin appeals her conviction of
aggravated robbery. The jury found Appellant guilty, found two enhancement
allegations to be “true,” and assessed punishment at confinement for twenty years
and a $5,000 fine. The trial court sentenced Appellant accordingly. Although
there was sufficient evidence to support Appellant’s conviction, a harmful
constitutional error did occur when defense counsel was precluded from asking a
proper question, during voir dire, on the full range of punishment. Thus, we
reverse and remand for a new trial.
I. The Charged Offense
Section 29.02(a) of the Texas Penal Code defines robbery as follows: “A
person commits an offense if, in the course of committing theft . . . and with intent
to obtain or maintain control of the property, he . . . intentionally, knowingly, or
recklessly causes bodily injury to another; or intentionally or knowingly threatens
or places another in fear of imminent bodily injury or death.” TEX. PENAL CODE
ANN. § 29.02(a) (West 2011). The offense becomes aggravated if the person “uses
or exhibits a deadly weapon.” Id. § 29.03(a)(2).
The grand jury included two enhancement paragraphs in Appellant’s
indictment. The first dealt with a prior second-degree felony conviction in 2000
for burglary of a habitation. 1 The second dealt with a prior third-degree felony
conviction in 2000 for escape while under arrest. 2
II. Evidence at Trial
Jesse Don Spain testified that on August 12, 2011, he was asleep on his
couch in his apartment when, after 4:00 a.m., he heard a knock on his door. Spain
opened the door and saw “Sleepy,” a/k/a James Andrew Richardson, and
Appellant, whom he knew because Appellant had been in his apartment two times
before and Richardson was her boyfriend. Spain told them to go away, closed the
door, and went back to bed, but they knocked on the door again a few minutes
later. Spain yelled through the door for them to go away, but they continued to
knock. Spain got up because he was worried they would wake the neighbors, and
he opened the door to tell them to leave. When Spain turned the doorknob,
Richardson pushed the door in and knocked Spain over a love seat.
1
TEX. PENAL CODE ANN. § 30.02 (West 2011).
2
Id. § 38.06 (West Supp. 2013).
2
Spain said that Richardson immediately jumped on him and swung at him
with his fists. Spain said that Richardson pressed his arm against Spain’s neck,
choked him, and remarked to him, “You ain’t so smart now, are you?” As
Richardson and Spain wrestled, Appellant took scissors from Spain’s end table and
stabbed Spain in the stomach. Richardson then pinned Spain’s head down so
Spain could not move, and Appellant unplugged an upright four-foot fan and used
it to hit Spain in the face. Richardson continued to hold Spain’s head down so that
Appellant could hit Spain with the fan several times. Spain also said that
Richardson later grabbed a curtain and tried to smother him.
Meanwhile, Appellant unplugged Spain’s television, but when Spain
escaped from Richardson’s hold, Spain heard Appellant go to the kitchen and
rummage through the silverware. Appellant took a steak knife from the silverware
drawer, walked back into the living room, and stabbed Spain in the back three
times while Spain struggled with Richardson. When Appellant tried to stab
Spain’s head, Richardson told Spain, “If you don’t quit fighting and be quiet, we’re
going to stab you in your head.” Spain thought they were going to kill him.
Appellant unplugged wires from the television and pulled it to the end of the
piece of furniture it rested on, and the next time Spain looked over, the television
was outside the apartment on the porch. As Spain gasped for breath and gathered
himself, Richardson and Appellant left the apartment. Spain did not see who took
the television from the porch.
Richardson and Appellant testified to a different version of events than
Spain. Appellant testified that, on the night of the alleged robbery, she and
Richardson were at Appellant’s mother’s apartment when they stopped by Spain’s
apartment in the complex across the street. According to Appellant, Spain had
called her earlier that day and told her to come to his apartment, but she declined to
go. Appellant had known Spain about six or seven months, and at his invitation,
3
she had been to his apartment approximately four times before this incident.
Appellant went to Spain’s apartment on the night of the alleged offense because
Spain had invited her earlier that evening and had given her money on prior
occasions and she wanted to see if she could get some money from him.
Appellant and Richardson walked to Spain’s apartment and knocked on the
door. Appellant and Richardson testified that Spain opened the door and invited
them in and that neither Appellant nor Richardson used any physical force to enter
the apartment. While inside, Appellant saw Spain and Richardson smoke crack
cocaine out of pipes; Richardson also testified that he smoked crack cocaine with
Spain. Appellant and Richardson testified that Spain asked Appellant if she
wanted to spend the night and that, when she said no, Spain asked her if she
wanted to have sex for payment. Appellant did not agree to have sex with Spain
but agreed to “get him off, like masturbation” for $40. Appellant demanded that
Spain take a shower, which he did, and then Appellant and Spain went into the
bedroom while Richardson sat on the couch in the living room. Spain gave
Appellant $40, and Appellant performed a sexual act on him. However, when
Appellant refused to have intercourse, Spain became angry; Appellant then left the
money on the nightstand, opened the bedroom door, and went into the living room
where Richardson was sitting.
Still angry, Spain followed Appellant into the living room and aggressively
pushed Richardson. Spain and Richardson wrestled and fought each other using
their fists. Appellant testified that she did not observe anyone use a weapon and
that she was never involved in the altercation between Spain and Richardson.
Appellant said Richardson and Spain knocked over the television during the fight.
After they fought for five or ten minutes, Richardson and Appellant left the
apartment. Appellant said that Richardson took the television because it was
broken after it fell during the fight. Appellant said that she never entered the
4
kitchen and that Spain was never stabbed while she and Richardson were inside
Spain’s apartment.
Richardson testified he and Appellant were at Appellant’s mother’s
apartment when Appellant decided she wanted to go to Spain’s apartment because
he had called her earlier. When Richardson and Appellant got to Spain’s
apartment, Spain opened the door and let them inside because Richardson had
some crack cocaine to smoke with Spain. After Richardson and Spain smoked
crack cocaine, Spain and Appellant went into the bedroom while Richardson
watched an adult video in the living room. Richardson said that, between 30
minutes and an hour later, Appellant came out of the bedroom and that Spain, who
was “mad,” followed her out of his bedroom. Richardson said that he asked what
was wrong and that Spain became angrier and told Richardson and Appellant to
“get out.”
Richardson testified that Spain tried to “big-face” him, which meant Spain
tried to put his hands on Richardson’s face and push him. Richardson said that he
sidestepped Spain, that Spain fell down, that he fell on top of Spain, and that the
television fell off the table and broke. Spain and Richardson fought, and
Richardson became even angrier because he had hurt his wrist in the altercation.
According to Richardson, Spain said, “You’re going to jail,” and Richardson said,
“F your TV” and then stomped on the television with his foot.
Richardson admitted to punching and elbowing Spain in the face but said
that he was only defending himself, that he never saw a knife or scissors, and that
Spain was never stabbed while they were in the apartment. Richardson said
Appellant had yelled at both of them to stop and then left the apartment.
Richardson said Appellant never engaged in any attack on Spain. Richardson said
that, after he stomped on the television, he picked it up and threw it over the ledge
of the second-story apartment. Richardson then left the apartment and put the
5
broken television behind a bush on the side of the apartment complex; Appellant
also said she saw Richardson put the television behind the bush.
Bradley Gene Barnes, a patrol officer for the City of Midland Police
Department, testified he responded to a burglary call at Spain’s apartment around
4:45 a.m. on the date of the alleged offense. Officer Barnes testified that, when
Spain answered the door, his emotional state was “pretty hysterical” and he had
blood on his face, hands, and abdomen. Spain also had lacerations and swelling on
his face and stab wounds on his flank.
After their arrest, Appellant testified she and Richardson had a phone
conversation in which they discussed getting Spain a new television in return for
his signing a paper “in his own handwriting”: what the State described as an
affidavit of non-prosecution. Richardson’s mother testified that Richardson had
said he could not take the television because he was “on foot” and because it was
“too heavy”; Richardson also testified that he did not take the television because it
was “too heavy.” On cross-examination, the State elicited testimony from
Appellant that she would not tell on Richardson but would do what she needed to
do to get herself out first.
III. Issues Presented
Appellant has presented three issues on appeal: (1) the trial court abused its
discretion when it refused Appellant the opportunity to question the entire jury
panel on the full range of punishment; (2) the trial court failed sua sponte to
instruct the jury on the burden of proof for extraneous offense evidence adduced in
the punishment phase; and (3) the State failed to prove sufficient evidence to
convict Appellant beyond a reasonable doubt of aggravated robbery.
We will address the sufficiency of the evidence first, followed by the first
issue. As we explain below, we overrule Appellant’s sufficiency challenge;
however, we are constrained to sustain her complaint on her inability to question
6
all prospective jurors on the full range of punishment—the range that would be
applicable if the State proved an aggravated robbery conviction and proved “true”
to the felony enhancement allegations. And, in light of our ruling on her first
issue, we need not address her second issue.
IV. Sufficiency of the Evidence
In her third issue, Appellant challenges the sufficiency of the evidence to
support her conviction. According to Appellant, after considering all of the
evidence, the jury was not rationally justified in finding her guilty beyond a
reasonable doubt because the evidence did not prove that she intentionally,
knowingly, or recklessly caused Spain bodily injury by hitting or striking him with
a fan or by cutting or stabbing him with a knife, which was alleged to be a deadly
weapon. We disagree.
A. Standard of Review
The standard of review for sufficiency of the evidence is whether any
rational jury could have found Appellant guilty beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307 (1979); Brooks v. State, 323 S.W.3d 893, 912
(Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—
Eastland 2010, pet. ref’d). Under the Jackson standard, we examine all of the
evidence in the light most favorable to the verdict and determine whether, based on
that evidence and reasonable inferences from it, any rational trier of fact could
have found the essential elements of the offense beyond a reasonable doubt.
Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.
2010). The standard gives full play to the responsibility of the trier of fact to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Winfrey v.
State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013). The standard of review is the
same for direct and circumstantial evidence cases. Isassi, 330 S.W.3d at 638.
7
B. Analysis
In order to find Appellant guilty of aggravated robbery, the jury had to find
that Appellant committed aggravated robbery by using or exhibiting a deadly
weapon: a knife. See PENAL § 29.03(a)(2). The jury’s finding of guilt turned on
whether the jury believed Spain’s account rather than that of Richardson and
Appellant. After reviewing the entire record and according deference to the
factfinder’s duty to resolve conflicting testimony, the cumulative effect of the
evidence proves that Appellant committed aggravated robbery by using or
exhibiting a deadly weapon.
Spain testified that he did not give permission to Richardson or Appellant to
enter his apartment and that they forced their way into his apartment. Spain
testified that Richardson knocked him over and swung at him with his fists, while
Appellant unplugged the television. Spain also testified that Appellant stabbed
him with scissors and hit him with a fan. Spain further testified he heard Appellant
go to the kitchen, get a knife, and return to the living room where she stabbed him.
Spain said that Richardson had told him, “If you don’t stop fighting and be quiet,
we’re going to stab you in your head.” Spain thought they were going to kill him,
and he suffered injuries to his head, back, abdomen, and flank. Richardson
testified he threw the television off the balcony of the second floor apartment, and
Appellant said she and Richardson left.
After her arrest, Appellant and Richardson had a phone conversation in
which they discussed getting Spain a new television in return for his signing a
paper “in his own handwriting”: what the State described as an affidavit of non-
prosecution. On cross-examination, Appellant testified she would not tell on
Richardson but would do whatever she had to do to get out of jail.
From the foregoing evidence, the jury could rationally infer that Richardson
and Appellant forcefully entered Spain’s home with the intent to obtain or maintain
8
control of his property. Further, given Spain’s testimony regarding Appellant’s use
of a steak knife to stab Spain and the photographs of Spain’s stab wounds and
injuries to his face, the jury could also rationally infer that Appellant intentionally
used the steak knife as a deadly weapon in the commission of the robbery. We
overrule Appellant’s third issue.
V. Voir Dire Questions on Punishment Range
if State Proved an Enhancement Allegation
In her first issue, Appellant contends that her counsel should have been
allowed to ask each of the members of the venire panel whether they could
consider the full range of punishment of fifteen years to ninety-nine years or life:
the range that would be applicable should the State prove the aggravated robbery
charge and a felony enhancement. The State appears to concede that this was an
error by the trial court, but it argues that there was no harm. Appellant contends
that she was harmed by the error.
A. Standard of Review
The trial court may impose reasonable restrictions on exercising voir dire
examination. Thompson v. State, 267 S.W.3d 514, 517 (Tex. App.—Austin 2008,
pet. ref’d) (citing Boyd v. State, 811 S.W.2d 105, 115 (Tex. Crim. App. 1991)).
“We review the trial court’s decision to limit voir dire under an abuse of discretion
standard. The trial court abuses its discretion when it limits a proper question
concerning a proper area of inquiry.” Id. (citation omitted) (citing Dinkins v. State,
894 S.W.2d 330, 345 (Tex. Crim. App. 1995)).
A defendant is entitled to a speedy trial before an impartial jury and has the
right to be heard by himself or counsel, or both. TEXAS CONST. art. I, § 10; TEX.
CODE CRIM. PROC. ANN. art. 1.05 (West 2005) (rights of accused), art. 1.051 (West
Supp. 2013) (right to counsel). A long line of cases has held that the “right to
counsel” under the Texas constitution includes the right to pose proper questions
9
during voir dire examination. Jones v. State, 223 S.W.3d 379, 381 (Tex. Crim.
App. 2007). The State agrees that counsel for the prosecution and counsel for the
defense may inform the venire panel of the range of punishment that would be
available if a prior felony conviction is proven for enhancement. Frausto v. State,
642 S.W.2d 506, 509 (Tex. Crim. App. [Panel Op.] 1982).
[T]he right to be heard at voir dire is a right to participate in the
proceedings in a certain way. The denial of that participation is the
constitutional violation, even if it is later determined that the defense
was not compromised by that denial. Such a later determination
would be relevant to a harm analysis but is not appropriate for
determining whether this type of constitutional violation occurred.
Jones, 223 S.W.3d at 383. The State conceded that a trial court’s denial of a
defendant’s right to ask a proper question during voir dire is an error of
constitutional magnitude. But with the recent holding of the Court of Criminal
Appeals in Easley v. State, the proper analysis is not to apply a per se rule to a voir
dire error but to determine if the error is substantial enough to warrant a
Rule 44.2(a) analysis; if not, then the error is reviewed under Rule 44.2(b).
Easley v. State, No. PD-1509-12, 2014 WL 941451 (Tex. Crim. App. Mar. 12,
2014); see TEX. R. APP. P. 44.2. In Easley, the court held:
[W]e overrule Plair 3 to the extent it holds that erroneously limiting an
accused’s or counsel’s voir dire presentation is constitutional error
because the limitation is a per se violation of the right to counsel.
This, of course, is different from holding that such an error may never
rise to the level of constitutional magnitude. There may be instances
when a judge’s limitation on voir dire is so substantial as to warrant
labeling the error as constitutional error subject to a Rule 44.2(a) harm
analysis.
Id. at *5. Under Rule 44.2(b), which applies to nonconstitutional error, a judgment
is affirmed unless the error affects the appellant’s substantial rights or deprives her
3
Plair v. State, 279 S.W. 267 (Tex. Crim. App. 1925).
10
of a fair trial. TEX. R. APP. P. 44.2(b); Easley, 2014 WL 941451, at *4, *6–7
(citing Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001)). But, under Rule
44.2(a), if the error is a constitutional violation, a judgment must be reversed
unless it is determined “beyond a reasonable doubt that the error did not contribute
to the conviction or punishment.” TEX. R. APP. P. 44.2(a); see Easley, 2014 WL
941451, at *5.
B. Analysis
A juror must be able to consider the full range of punishment for an offense,
and a defendant’s voir dire question about a juror’s ability to do so is generally
proper. Cardenas v. State, 325 S.W.3d 179, 184 (Tex. Crim. App. 2010); see
CRIM. PROC. art. 35.16(c)(2) (West 2006). If a juror cannot consider an offense’s
full range of punishment, the juror is challengeable for cause. Cardenas, 325
S.W.3d at 184–85; see also Standefer v. State, 59 S.W.3d 177, 181 (Tex. Crim.
App. 2001); Banda v. State, 890 S.W.2d 42, 55 (Tex. Crim. App. 1994)
(explaining that a “person who testifies unequivocally that he could not consider
the minimum sentence as a proper punishment for [an] offense . . . is properly the
subject of a challenge for cause”).
The trial court, based on an objection by the State, did not allow defense
counsel to ask veniremembers numbered 28 and above whether, if the charge
against Appellant was proved beyond a reasonable doubt and a felony
enhancement was proved true, they could consider the full range of punishment
from fifteen years to ninety-nine years or life. Defense counsel’s question was
presented as follows:
Now, let me ask you this. Under our law, if it is shown that a
person has previously been convicted of a felony, if it is proven
they’ve previously been convicted of a felony, then a second-degree
felony, robbery, would be punished as a first-degree. In other words,
11
it bumps the range of punishment up from two to 20 to five to 99.
Everybody follow me so far?
And for an aggravated robbery, which would be a first-degree
felony, if it is shown that the person has been convicted of a prior
felony, it bumps up the punishment to a minimum of 15 to 99 or life.
So it doesn’t start out at five. It’s -- 15 now is the floor, the minimum.
Does everybody follow me on that?
Is there anybody here on this first row who could not consider
the minimum of 15 years for aggravated robbery with a prior felony
conviction?
The veniremembers, who were ultimately seated as jurors one through nine, were
asked this question without objection by the State. Defense counsel also asked the
question individually to seventeen other veniremembers without objection, and all
responded that they could consider the full range of punishment. But
Veniremember Wilson, number 27, said he could not consider the minimum range
of punishment of fifteen years, and the State then objected to the question arguing
it was an improper attempt to qualify on a particular set of facts. Defense counsel
argued it was a range-of-punishment question based on whether an enhancement
was proved true. Defense counsel provided no factual details about the felony
enhancement.
The trial court sustained the State’s objection and, despite additional
requests by defense counsel, did not allow defense counsel to ask veniremembers
28 and above the desired range-of-punishment question even though Wilson,
veniremember number 27, was struck for cause because he could not consider the
fifteen-year minimum. Veniremembers 28, 29, and 38 (Hamilton, Sweeney, and
Ortiz, respectively) 4 were never asked the range-of-punishment question posed by
defense counsel to veniremembers 1 through 27.
4
Hamilton, Sweeney, and Ortiz were jurors 10, 11, and 12, respectively.
12
The State appears to concede that this was an error, and we agree because
the question, as posed by defense counsel, was an appropriate voir dire question.
See Cardenas, 325 S.W.3d at 184. The State also appears to concede that the error
was constitutional in nature, but the State did not have the benefit of the opinion in
Easley. See Easley, 2014 WL 941451, at *4–5. In light of Easley, we must
determine if this error was a constitutional error or a nonconstitutional error. Id.
The Easley court provided several examples of errors that had been deemed per se
constitutional violations but actually were not constitutional violations; the court
did not, however, provide an example of what would rise to the level of
constitutional magnitude. Id. The Easley court stated that it is a misnomer to say
that voir dire errors necessarily violate the right to counsel and that the most
pertinent issue in jury selection is the right to speedy trial by an impartial jury. Id.
at *3–4.
The Easley court in overruling Plair noted that, in Plair 5 as well as in
Carlis,6 the trial courts had refused to allow individual questioning by counsel but
that both trial courts had asked questions of the entire panel. 7 Id. at *2–3. In Plair,
the appellate court reversed because counsel did not get to question individual
jurors. Plair, 279 S.W. at 269. In Carlis, the appellate court reversed because the
trial court’s questions were insufficient. Carlis, 51 S.W.2d at 730. The Easley
court noted that both cases dealt with questions that defense counsel wanted to ask:
in the former, the question related to burden of proof, while in the latter, it was
whether the veniremembers knew the district attorney. Easley, 2014 WL 941451,
at *2–3. These questions dealt with the defense counsel’s desire to glean
5
Plair, 279 S.W. at 269.
6
Carlis v. State, 51 S.W.2d 729, 730 (Tex. Crim. App. 1932).
7
The Easley court overruled Plair and its progeny. Easley, 2014 WL 941451, at *5.
13
information on veniremembers so counsel could exercise peremptory challenges.
Id.
In this case, Appellant’s counsel desired to ask a question about the ability
of a juror to be open and impartial to the evidence and the full range of punishment
that would be applicable, depending on the proof adduced by the State not only as
to the charge of aggravated robbery but also as to the felony enhancements.
Veniremember Wilson said before the trial had even begun that he could not
consider the minimum punishment of fifteen years. Veniremember Wilson was
excused for cause because he had prejudged the case without evidence and had
acknowledged he would not follow the court’s instructions. Defense counsel knew
that the veniremembers ultimately seated as jurors 1 through 9 had said that they
could follow the court’s instruction and consider the full range of punishment, as
posed in defense counsel’s hypothetical. Defense counsel was entitled to know if
jurors 10, 11, and 12 could do the same, but he was never allowed to ask them. In
addition, the trial court never asked the question to the entire venire panel, and
when defense counsel requested again to ask his range-of-punishment question to
the entire panel, the trial court refused to allow the question.
We think this situation is distinguishable from Easley and the cases it
overruled and is more like Martinez v. State, where the court held that the trial
court erred when it refused to permit defense counsel to question the venire panel
about the full range of punishment. Martinez v. State, 588 S.W.2d 954, 956–57
(Tex. Crim. App. [Panel Op.] 1979). Although Martinez relied on Mathis v. State,
576 S.W.2d 835, 839 (Tex. Crim. App. 1979), overruled by Easley, 2014 WL
941451, at *5, and on Mathis v. State, 322 S.W.2d 629, 631–32 (Tex. Crim. App.
1959), which relied on Plair, and so also is overruled, both Mathis cases dealt with
peremptory challenges, while Martinez did not. It is our view that the refusal to
14
permit defense counsel to ask all veniremembers if they could consider the
minimum punishment, as enhanced, is a constitutional violation.
Defense counsel is entitled to ask the veniremembers the question of
whether they could consider the full range of punishment, and if the trial court
prevents counsel from doing that, then defense counsel may not be able to discern
if a juror should be struck for cause because he is unqualified. A veniremember is
disqualified if he has prejudged the case or cannot follow the court’s instructions.
CRIM. PROC. art. 35.16(c)(2). To have such an unqualified veniremember, like
Wilson, on the jury is a violation of the defendant’s right to an impartial jury. See
TEX. CONST. art. I, § 10 (providing in part, “In all criminal prosecutions the
accused shall have a speedy public trial by an impartial jury.”); CRIM. PROC.
art. 35.16(c)(2). We find that the error in this case is a constitutional violation that
requires a Rule 44.2(a) analysis.
Therefore, the remaining issue for us to consider is whether this error did
not, beyond a reasonable doubt, contribute to the conviction or punishment as
assessed by the jury and was, therefore, harmless.
[W]e assess whether appellant was harmed by denial of the proper
voir-dire questions during the group, voir-dire setting by reviewing
the entire record, including (1) any testimony or physical evidence
admitted for the jury’s consideration; (2) the nature of the evidence
supporting the verdict; and (3) the character of the error and how it
might be considered in connection with other evidence in the case, the
jury instructions, the State’s theory and any defensive theories,
closing arguments, voir dire, and whether the State emphasized the
error.
Wappler v. State, 183 S.W.3d 765, 778 (Tex. App.—Houston [1st Dist.] 2005, pet.
ref’d).
We must, therefore, calculate, as nearly as possible, the probable
impact on the jury of the trial court’s error in refusing to allow
appellant the opportunity to ask proper voir-dire questions in light of
15
the evidence adduced at trial, to determine whether we can conclude
beyond a reasonable doubt that the error did not contribute to his
conviction or punishment.
Id. at 777–78 (citing TEX. R. APP. P. 44.2(a), McCarthy v. State, 65 S.W.3d 47, 55
(Tex. Crim. App. 2001), and Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim.
App. 2000)).
Although the record and the jury strike lists reflect that nine jurors were
asked the question about the full range of punishment as enhanced, three jurors
were seated that were never asked this question. This is not a situation where the
applicable range of punishment was covered and a different range not applicable
was not covered. See Taylor v. State, 109 S.W.3d 443, 453–54 (Tex. Crim. App.
2003). In addition, we do not have the situation where the question was
inapplicable because of the facts proven at trial. See Dowthitt v. State, 931 S.W.2d
244, 250–51 (Tex. Crim. App. 1996) (defendant not harmed by not being allowed
to ask about probation for lesser included offense where defendant convicted of
capital murder); Jones v. State, 843 S.W.2d 487, 498 (Tex. Crim. App. 1992)
(defendant not harmed by not being allowed to ask question on parole for lesser
included offense when defendant was convicted of capital murder).
The prosecutor did not ask questions about the range of punishment that
would be applicable if he proved a felony enhancement. We cannot say that jurors
10, 11, and 12, who could consider a two-year minimum for a second-degree
felony or a five-year minimum for a first-degree felony, could have considered a
fifteen-year minimum with a felony enhancement. Veniremember Wilson said he
could not and was excused for cause. Defense counsel should have been allowed
to ask the others if they held views similar to Veniremember Wilson because three
of them ultimately became jurors. And although Appellant was assessed a
sentence close to the minimum range, we cannot tell from the record whether the
16
three jurors—10, 11, and 12—would have been able to consider the full range of
punishment based on the facts proved at trial.
The State emphasized a wealth of evidence that supported Appellant’s guilt,
including testimony from Spain about how Richardson attacked him and how
Appellant attacked and stabbed him, as well as Officer Barnes’s testimony about
Spain’s condition after the attack. The jury heard evidence from Appellant about
how she and Richardson went to Spain’s apartment; how Richardson and Spain
fought after she refused to have sexual intercourse with Spain for $40; how
Richardson “stomped” on Spain’s television, threw it out of the apartment, and
later hid it; and how they both left the apartment. The jury also heard evidence of
Appellant’s prior convictions and how she and Richardson talked about paying
Spain off in return for an affidavit of non-prosecution.
The State highlighted this evidence in closing arguments and requested a
higher sentence because of Appellant’s prior criminal history and the felony
enhancements, which were proved “true.” The State also requested a higher
sentence because of the perceived continuing danger of Appellant to society.
Defense counsel was entitled to know whether jurors 10, 11, and 12 could have
considered a fifteen-year minimum sentence, and without knowing that
information, we cannot say beyond a reasonable doubt that the error did not
contribute to Appellant’s conviction or punishment. Therefore, we sustain
Appellant’s first issue.
VI. Conclusion
We hold that a rational jury could have found Appellant guilty beyond a
reasonable doubt of aggravated robbery, and we overrule her sufficiency challenge.
However, we sustain her complaint that her request to question all prospective
jurors on the full range of the enhanced punishment was improperly denied. And,
because we cannot determine beyond a reasonable doubt that this error did not
17
contribute to her conviction or punishment, we sustain her first issue. In light of
our ruling, we need not address her second issue.
VII. This Court’s Ruling
We reverse the judgment of the trial court and remand the cause for new
trial.
MIKE WILLSON
JUSTICE
March 31, 2014
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
18