Clinton Dwayne Sandel v. State

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00196-CR
___________________________
CLINTON DWAYNE SANDEL, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 355th District Court
Hood County, Texas
Trial Court No. CR13935
Before Kerr, Bassel, and Womack, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION
I. Introduction
Appellant Clinton Dwayne Sandel appeals his conviction for failing to stop and
render aid. See Tex. Transp. Code Ann. § 550.021. A jury convicted him of the
offense and assessed his punishment at two years’ confinement in the Institutional
Division of the Texas Department of Criminal Justice and a $10,000 fine. The trial
court sentenced Appellant accordingly.
In a single issue, Appellant contends that the trial court erred by sustaining an
objection to a voir dire question asked by his trial counsel. We hold that Appellant
failed to preserve error because he failed to make clear to the trial court the limited
nature of the question that he had allegedly wanted to ask and that is the predicate for
his claim on appeal. We therefore affirm the trial court’s judgment.
II. Factual and procedural background
Appellant was indicted for
intentionally or knowingly driv[ing] a vehicle which became involved in
an accident resulting in death to [the decedent], and the said defendant
did thereafter, knowing said accident had occurred, intentionally or
knowingly leave the scene of said accident, without giving his name and
address to any person, and without rendering reasonable assistance to
[the decedent] when it was apparent that [the decedent] was in need of
medical treatment[.]
The State qualified the venire on a legislative amendment to the elements of the
offense that Appellant was indicted for. A 2013 amendment to the elements of the
offense provided that “[t]he operator of a vehicle involved in an accident that results
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or is reasonably likely to result in injury to or death of a person shall: . . .
(3) immediately determine whether a person is involved in the accident, and if a person is involved in
the accident, whether that person requires aid.” Id. § 550.021(a)(3) (emphasis added). The
State gave the following explanation for the change in the statute:
[W]hat do you think a lot of people were doing when they were charged
with this crime? Claiming that I didn’t know somebody was involved in
the accident. I didn’t know I hit a person. Right? Well, the legislature
got wise to that and they changed the law [by adding the language from
the statute that is quoted above].
The voir dire conducted by Appellant’s trial counsel mostly asked whether
prospective jurors could consider probation even if Appellant were found guilty of
the offense beyond a reasonable doubt. Most of the questions were asked without
objection. At certain points during the defense’s voir dire, the State asked for a bench
conference, but none of the bench conferences were transcribed. Late in the
defense’s voir dire, Appellant’s counsel switched to questions that involved the
elements of the offense. These questions appeared to question the jury about their
feelings on the portion of the statute that imposed the duty to determine whether a
person had been involved in an accident. We quote the entirety of the relevant
portion of the examination because it is impossible to follow the confused state of the
questioning without its context. Generally speaking though, Appellant’s trial counsel
asked questions first on ignorance of the law and later as if the 2013 amendment
never occurred, and although the bases of the State’s objections are not stated on the
record, presumably the State was arguing that Appellant’s trial counsel was asking the
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venire to commit to defenses that were not legally valid. We highlight the questions
to which an objection was made and the trial court’s rulings on the objections:
[DEFENSE COUNSEL]: Okay. Is there anybody here who feels that
just because you’ve been in an accident and somebody died that that’s a
crime?
(No audible response.)
[DEFENSE COUNSEL]: Anybody? If you found all the
elements of the offense, then that would be a crime, but if you didn’t
and you have a reasonable doubt, you would have to find the Defendant
not guilty.
Now, my question to you is could you consider a claim, if you
will, that the Defendant did not knowingly stop and render aid? That’s
part -- part of what you have to do.
Anybody here who feels you can’t do that?
[UNIDENTIFIED] VENIREPERSON: I’m confused when you
said --
[UNIDENTIFIED] VENIREPERSON: What did you say?
[DEFENSE COUNSEL]: My question is could you consider whether or
not the Defendant in this case is guilty because he didn’t stop and render aid because
he didn’t know he was supposed to? The law will -- the judge will give you the law.
[PROSECUTOR]: May we approach, Your Honor?
(At the bench, off the record.)
[PROSECUTOR]: I object, Your Honor.
THE COURT: Sustained.
[DEFENSE COUNSEL]: Could you consider the factors -- the accident,
the whole -- all the factors, the lighting, the -- the -- the situation that was happening
that, you know, somebody didn’t realize that they hit a -- hit a person?
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[PROSECUTOR]: I object, Your Honor.
THE COURT: Sustained.
[DEFENSE COUNSEL]: All right. Could you consider all the
factors and the circumstances in this case to determine whether or not
you could find the Defendant guilty of this offense?
(No audible response.)
[DEFENSE COUNSEL]: Could you do that? Anybody who
couldn’t?
(No audible response.)
[DEFENSE COUNSEL]: Anybody who could?
[VENIREPERSON MR. J.]: I’m so confused.
[VENIREPERSON MS. W.]: I’m going to throw a quote that my
father has told me for my whole life: Ignorance of the law is no excuse.
[DEFENSE COUNSEL]: Well, that --
[VENIREPERSON MS. W.]: So that’s what I think of whenever
I think of those things is just because you’re not aware of the law does
not mean that you -- that it does not pertain to you.
[DEFENSE COUNSEL]: So, in other words, if the State failed
to prove their mental -- the mental part of the crime that you would still
find him guilty?
[VENIREPERSON MS. W.]: I thought that you were referring
to what your client -- I thought you had said that somebody didn’t
realize they were supposed to render aid, but not knowing is not an
excuse. That’s what I thought I was answering, so I may have been
mistaken.
[DEFENSE COUNSEL]: Well, what I’m asking is if the Defendant
did not realize that he had had an accident, did not realize --
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[PROSECUTOR]: I object, Your Honor.
THE COURT: Sustained.
[DEFENSE COUNSEL]: Okay.
[VENIREPERSON MS. W.]: I’m not sure how to answer.
[DEFENSE COUNSEL]: Yes, sir?
[VENIREPERSON MR. D.]: If he didn’t realize he had an accident,
that’s obvious that, you know, he would be under the influence or something like that.
[DEFENSE COUNSEL]: No, he wasn’t.
[VENIREPERSON MR. D.]: How do you not know you hit
something?
[DEFENSE COUNSEL]: Well, he knew he hit something but he
didn’t know he hit a person.
[VENIREPERSON MR. D.]: So would you --
[PROSECUTOR]: Your Honor, I --
THE COURT: Let me see the lawyers up here.
(At the bench, off the record.) [Emphasis added.]
After the last bench conference, Appellant’s counsel ended his voir dire
without asking any further questions.
III. Analysis
A. Standard of review and preservation of error in the context of voir dire
“We review the trial court’s limitation of the voir dire process for an abuse of
the trial court’s broad discretion to impose reasonable restrictions on the voir dire
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process.” Wilson v. State, No. 02-17-00280-CR, 2018 WL 6215889, at *7 (Tex. App.—
Fort Worth Nov. 29, 2018, no pet.) (mem. op., not designated for publication) (citing
Hernandez v. State, 390 S.W.3d 310, 315 (Tex. Crim. App. 2012)). “An abuse of
discretion occurs when a proper question about a proper area of inquiry is
prohibited . . . .” Sandoval v. State, 571 S.W.3d 392, 397 (Tex. App.—Houston [1st
Dist.] 2019, no pet.) (citing Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002),
and Atkins v. State, 951 S.W.2d 787, 790 (Tex. Crim. App. 1997)).
In voir dire, counsel must be proactive in establishing why the questions he
seeks to ask are proper because “[w]here the trial court placed no absolute limitation
on the substance of a defendant’s voir dire question, but merely limited a question due
to its form, defense counsel must rephrase the question or risk waiving the voir dire
restriction.” Wilson, 2018 WL 6215889, at *7 (citing Hernandez, 390 S.W.3d at 315).
Recently, the El Paso Court of Appeals catalogued the cases holding that the failure to
rephrase an improperly worded question forfeits any claim of error:
The trial court has the discretion to require improperly phrased
questions to be properly reworded; failing to do so forfeits any claimed
error. Wright v. State, 28 S.W.3d 526, 534 (Tex. Crim. App. 2000)
(“Although appellant is authorized to ask proper questions in a particular
area of inquiry, he is not entitled to ask questions in any particular form.
Because appellant did not follow through on this topic, we cannot say
that the trial court improperly restricted his voir dire of this venire
member.”); Howard[ v. State], 941 S.W.2d [102,] 110–11 [(Tex. Crim. App.
1996) (op. on reh’g)] (where there is no absolute limitation placed on the
underlying substance of a defendant’s voir dire question, it is incumbent
upon defense counsel to rephrase the improperly phrased query or waive
the voir dire restriction)[, overruled in part on other grounds by Easley v. State,
424 S.W.3d 535 (Tex. Crim. App. 2014)]; Trevino v. State, 815 S.W.2d 592,
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600–01 (Tex. Crim. App. 1991), rev’d on other grounds, 503 U.S. 562, 112
S. Ct. 1547, 118 L. Ed. 2d 193 (1992) (no error in restriction on voir dire
pertaining to single question that could have been easily reworded);
Moncada v. State, 960 S.W.2d 734, 737 (Tex. App.—El Paso 1997, pet.
ref’d) (same).
Gonzalez v. State, No. 08-14-00293-CR, 2019 WL 1553583, at *14 (Tex. App.—El Paso
Apr. 10, 2019, pet. filed) (not designated for publication).
As discussed below, it is improper to ask jurors to commit to what weight they
will accord particular testimony. To preserve error during the often confusing process
of determining whether a question improperly requires such a commitment, counsel
must make clear why the question being asked is proper:
Whether an individual question posed to a panel of potential jurors
focuses on bias or prejudice, or is a preview of evidence, is sometimes
difficult to discern from the trial’s transcript. [Hyundai Motor Co. v.
Vasquez, 189 S.W.3d 743, 753 (Tex. 2006).] Generally, the “trial judge is
in a better position to evaluate the reasonableness of both aspects—the
question and the answer.” Id. “When the trial court determines that a
proffered question’s substance is confusing or seeks to elicit a pre-
commitment from the jury, counsel should propose a different question
or specific area of inquiry to preserve error on the desired line of inquiry;
absent such an effort, the trial court is not required to formulate the
question.” Id. at 758.
In re Commitment of Barbee, 192 S.W.3d 835, 846 (Tex. App.—Beaumont 2006, no
pet.). 1
We cite to a civil case because of the overlap in standards in civil and criminal
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cases on issues involving voir dire. See Harrison v. State, No. 09-11-00031-CV, 2011
WL 3925705, at *1 n.1 (Tex. App.—Beaumont Aug. 25, 2011, pet. denied) (mem. op.,
not designated for publication).
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B. Limitations on the ability to ask the venire panel how it will respond
to specific evidence
Much time is spent examining the propriety of asking the venire commitment
questions, i.e., questions that ask “a venireman to promise that he will base his verdict
or course of action on some specific set of facts before he has heard any evidence,
much less all of the evidence in its proper context.” Sandoval, 571 S.W.3d at 397
(quoting Sanchez v. State, 165 S.W.3d 707, 712 (Tex. Crim. App. 2005)).
Certain classes of commitment questions are proper and others are not; the
Texas Court of Criminal Appeals has established a three-part test to distinguish
between the two:
• First, the trial court must determine whether a particular question is in
fact a commitment question. Id. (citing Standefer v. State, 59 S.W.3d 177,
179 (Tex. Crim. App. 2001)).
• Second, if it is a commitment question, then the court must decide
whether it is nevertheless a proper commitment question. See id. (citing
Standefer, 59 S.W.3d at 181). To determine whether the question is a
proper commitment question, the court first inquires whether one of the
possible answers to the question gives rise to a valid challenge for cause.
See id. (citing Standefer, 59 S.W.3d at 181–82). If it does not, then the
question is not proper and should be disallowed by the trial court. See id.
at 397–98.
• Third, if the commitment question gives rise to a valid challenge for
cause, then the trial court must determine whether the question contains
only those facts necessary to test whether a prospective juror is
challengeable for cause. See id. at 398 (citing Standefer, 59 S.W.3d at 182).
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C. Appellant has failed to preserve error
Appellant’s brief concedes that “defense voir dire is not an example of clarity.”
We agree. As we construe Appellant’s argument, he tries to isolate as error a fragment
of a question (“I’m asking . . . if the Defendant did not realize that he had had an
accident . . . .”) to which the trial court sustained an objection. In doing so, he ignores
the confused context in which the question was asked and the fact that the question
appeared that it might be swerving off into a topic to which the trial court had already
sustained an objection. When the venire responded to the fragment of the question
he asked, Appellant’s trial counsel tried to rephrase the question and asked the same
question to which an objection had been sustained. If counsel was trying to ask the
narrow question that Appellant’s brief contends he was trying to ask, counsel never
made that point to the trial court, and we hold that the alleged error was not
preserved.
As set forth above, the State qualified the jury on the recent statutory
amendment to the offense that imposed a duty on a person involved in an accident to
“immediately determine whether a person is involved in the accident.” See Tex.
Transp. Code Ann. § 550.021(a)(3). As we have noted, Appellant’s counsel attempted
to commit the venire on whether they would consider if Appellant knew that he had
hit a person. The State argues in its brief that Appellant’s question is an improper
commitment question. Specifically, the State argues that the question is improper on
the basis that it would not give rise to a valid challenge for cause because the offense
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is not predicated on knowing that a person was struck but on the failure to stop and
determine whether a person was struck. We agree that the question would not give
rise to a valid challenge for cause, and Appellant does not contend that this argument
is in error.
Instead, Appellant appears to argue that his trial counsel worked in a proper
question between the improper commitment questions and that the trial court erred
by sustaining an objection to the proper question. Appellant focuses on the question
fragment: “Well, what I’m asking is if the Defendant did not realize that he had had
an accident, did not realize --” to which the trial court sustained the State’s objection.
Appellant contends that this question was proper because “[i]f a juror answered, ‘I do
not care if the defendant knew he was in an accident or not, I would find him guilty’ it
might give rise to a challenge for cause as a demonstration of bias.”
If this were the limited question that counsel was trying to ask, he never made
that clarification to the trial court. The objection was made as counsel was adding
verbiage to his question from which it appeared that he might again be asking the
improper question of whether Appellant knew that he had hit a person. Indeed, when
a member of the venire responded to the question and obtained a clarification of the
question, Appellant’s trial counsel reverted to the questionable theme that Appellant
did not know that he had hit a person. The trial court faced the confusing voir dire
environment that the standard of review and the rules of preservation address. In that
environment, Appellant apparently wanted the trial court to subtly parse whether
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defense counsel was asking a proper question or was trying to circle back to the
improper commitment question. If Appellant’s trial counsel was trying to ask the
limited question that Appellant now contends he was trying to ask (that he was not
aware that he had an accident), he had the obligation to help the trial court understand
how his question embodied that limitation. That clarification was not made for the
trial court, and we hold that Appellant has failed to preserve the claim that the trial
court abused its discretion by sustaining the objection to the question being
propounded when there was no clarification that counsel was not trying to repeat the
improper question that he had just asked.2 We overrule Appellant’s sole issue.
IV. Conclusion
Having overruled Appellant’s sole issue, we affirm trial court’s judgment.
/s/ Dabney Bassel
Dabney Bassel
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: February 13, 2020
2
As the quotations from the record show, several bench conferences were held
during the defense’s voir dire. They were not transcribed, and we do not know what
occurred during those conferences. To preserve a complaint, an appellant must
obtain a ruling; objections and rulings made during untranscribed bench conferences
do not preserve error because we do not know what objections or rulings were made.
See Wilson, 2018 WL 6215889, at *7.
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