Trevino v. State

OPINION

DALLY, Judge.

This is an appeal from a conviction for the offense of burglary; the punishment, which is enhanced by two prior convictions, is imprisonment for life.

In two grounds of error the appellant asserts that the trial court would not allow his counsel to make a proper inquiry of jury panel members during the voir dire examination. He argues that he could not properly use his peremptory strikes since the court would not let him ask the prospective jurors whether they would give more weight and credit to the testimony of law enforcement officers, merely because they were law enforcement officers, than to the testimony of other witnesses.

After the court had sustained an objection to a similar question to another juror defense counsel asked a prospective juror: “Do you think, merely because that person is a police officer, do you think you would pay or give more weight to his testimony than someone who was not a policeman?” The court sustained the State’s objection to this question and instructed defense counsel not to ask that question again.

The constitutional rights to counsel and trial by jury carry with them the right of counsel to interrogate the members of the jury panel for the purpose of enabling counsel to exercise intelligently his peremptory challenges. Smith v. State, 513 S.W.2d 823 (Tex.Cr.App.1974); Mathis v. State, 167 Tex.Cr.R. 627, 322 S.W.2d 629 (1959); Flair v. State, 102 Tex.Cr.R. 628, 279 S.W. 267 (1926); Reich v. State, 94 Tex.Cr.R. 449, 251 S.W. 1072 (1923). As a general rule, great latitude should be allowed for such interrogation. McGowen v. State, 163 Tex.Cr.R. 587, 290 S.W.2d 521 (1956); Cochran v. State, 130 Tex.Cr.R. 382, 94 S.W.2d 471 (1936). However, the trial judge has the authority to limit the scope of voir dire, and the test for ascertaining harm in such cases is whether the trial judge’s limitation amounted to an abuse of discretion. Emanus v. State, 526 S.W.2d 806 (Tex.Cr.App.1975); Smith v. State, supra.

In the instant case, four police officers were witnesses and their testimony was an important part of the State’s case. Under the circumstances, knowing whether or not each of the prospective jurors would give greater weight to the testimony of police officers, merely because they were police officers, than to the testimony of non-officers would have enabled appellant’s counsel to exercise more intelligently his peremptory challenges. The question propounded by appellant’s counsel did not exceed the proper scope of voir dire, cf. Hunter v. State, 481 S.W.2d 137 (Tex.Cr.App.1972), and because this restriction of appellant’s voir dire examination extended to the entire jury panel, injury to appellant is clearly shown. Emanus v. State, supra. We hold that by sustaining the State’s objection to the question and instructing appellant’s counsel not to ask the question again, the trial court abused its discretion. See Smith v. State, supra; Abron v. State, 523 S.W.2d 405 (Tex.Cr.App.1975); Hernandez v. State, 508 S.W.2d 853 (Tex.Cr.App.1974).

Smith v. State, supra, which holds that a defendant need not prove harm by showing his peremptory challenges were exhausted or that he had to accept an objectionable juror overruled sub silentio Crowson v. State, 364 S.W.2d 698 (Tex.Cr.App.1963), where without further discussion it was said no harm was shown when the trial court sustained an objection to a question during jury voir dire which was similar to the question considered in this case.

The judgment is reversed and the cause remanded.

EN BANC.

STATE’S MOTION FOR REHEARING