Opinion
No. 14-03-00374-CR.
Opinion filed January 13, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(B).
On Appeal from the 10th District Court Galveston County, Texas, Trial Court Cause No. 01CR1448. Affirmed.
Panel consists of Justices YATES, HUDSON, and FOWLER.
MEMORANDUM OPINION
Appellant Robert Darrell Burell, Jr., was convicted by a jury of the offense of aggravated robbery with two felony enhancements and a deadly weapon finding, and was sentenced by the trial court to 48 years' imprisonment in the Texas Department of Criminal Justice, Institutional Division. In one issue, appellant asserts that the trial court erred in overruling his objections to the prosecution informing the jury array that proof beyond a reasonable doubt does not mean proof beyond all doubt. We affirm. During the voir dire stage of appellant's trial, the prosecutor said to the jury panel, "Our standard of proof is beyond a reasonable doubt, not beyond all doubt." After appellant's trial counsel objected, and the trial court overruled that objection, the prosecutor continued as follows:
It's beyond a reasonable doubt. With that stated, can everyone hold us to the standard of beyond reasonable doubt and not all doubt? Everybody knows there's a difference between the two. I'm not going to sit up here and try to tell you this is what reasonable doubt means. That's not my place. That's for you to determine, the 12 of you who are selected. But it's not beyond all doubt.Appellant's counsel again objected, and a discussion with the court ensued outside the presence of the jury panel. After the panel was reconvened, the prosecutor ended this line of questioning by asking the jury, "The State's burden is beyond a reasonable doubt, not all doubt. Evidence comes in a variety of ways. It comes from a witness; it comes from physical evidence. Everybody understand that? That's fairly basic." The trial court overruled appellant's objections to the foregoing statements and explained the basis for his ruling by saying that the prosecution is allowed to question a jury panel about whether they can follow the standard of reasonable doubt. As explained below, we agree with the trial court. Citing only two cases, Garrett v. State, 851 S.W.2d 853 (Tex.Crim. App. 1993), and Standefer v. State, 59 S.W.3d 177 (Tex.Crim. App. 2001), appellant contends the prosecution's statements were improper, both because they are inaccurate under Texas law and because they constitute improper commitment questions. "What constitutes proof `beyond a reasonable doubt' is not subject to definition by the trial court because it is up to the jurors to determine whether their doubts, if any, about the defendant's guilt are reasonable." O'Canas v. State, ___ S.W.3d ___, No. 05-02-01638-CR, 2003 WL 22701240, at *7 (Tex. App.-Dallas Nov. 17, 2003, no pet. h.). As other courts of appeals have observed, "prospective jurors are often instructed during voir dire that the State's burden of proof beyond a reasonable doubt does not require proof beyond all doubt." Id. (quoting Rodriguez v. State, 96 S.W.3d 398, 405 (Tex. App.-Austin 2002, pet. ref'd)). If prospective jurors state that they cannot convict unless the defendant's guilt is proven beyond all doubt — not beyond a reasonable doubt — they are held to have a bias against the law and are stricken for cause. Id. (citations omitted); see also Drinkard v. State, 776 S.W.2d 181, 187-88 (Tex.Crim.App. 1989) (holding that prospective juror was properly struck for cause because he indicated he would hold the State to a standard higher than beyond a reasonable doubt); Wilder v. State, 111 S.W.3d 249, 252 (Tex. App.-Texarkana 2003, no pet.) ("A venireman is subject to a challenge for cause by the State, or by a defendant, if he or she is unable to follow the law.") (citing TEX. CODE CRIM. PROC. ANN. art. 35.16(b)(3), (c)(2) (Vernon Supp. 2003)). Thus, a prosecutor's explanation to a jury panel that the State has the burden of proof beyond a reasonable doubt — not beyond all doubt — is proper. See, e.g., Wilder, 111 S.W.3d at 252 ("Clearly, it is proper to question veniremen concerning their understanding of the term `reasonable doubt.'") (citing Dinkins v. State, 894 S.W.2d 330, 344-45 (Tex.Crim.App. 1995)); Williams v. State, No. 07-01-0414-CR, 2003 WL 327601, at *4 (Tex. App.-Amarillo Feb. 13, 2003, pet. ref'd) (not designated for publication) (holding that prosecutor's suggestion to jury panel during voir dire that they use "common sense" to define reasonable doubt and trial court's explanation that "reasonable doubt" is not proof beyond all doubt, but is proof beyond a reasonable doubt, were not error). Such an explanation does not violate Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App. 2000), in which the Court of Criminal Appeals held that it is improper to define the phrase `beyond a reasonable doubt' in a jury instruction absent the agreement of the parties. In this case, appellant does not complain about a jury instruction; he is merely complaining about statements made by the prosecutor, which, as we have said, are clearly proper under Texas law. Nor do we agree with appellant that the prosecutor's statements were impermissible commitment questions. As this court explained in Mason v. State, 116 S.W.3d 248 (Tex. App.-Houston [14th Dist.] 2003, no pet.), "[a] commitment question is one that `commits a prospective juror to resolve, or to refrain from resolving, an issue a certain way after learning a particular fact.'" Id. at 253 (quoting Standefer, 59 S.W.3d at 179). To determine if a question is an improper commitment question, we conduct a two-step inquiry. First, we determine whether the question is indeed a commitment question. Second, we determine whether the question includes facts — and only those facts — that lead to a valid challenge for cause. Id. If the answer to the first question is "yes" and the answer to the second question is "no," the question is an improper commitment question. In this case, the prosecutor's statements and questions to the jury panel do not constitute commitment questions, and thus, the answer to the first question is "no," obviating the need for us to conduct further inquiry. The statements did not require any venire members to commit to convict or sentence appellant under a certain set of facts. Cf. Standefer, 59 S.W.3d at 180 (finding that question that asked "if the victim is a nun, could [the prospective juror] be fair and impartial?" was not a commitment question, but question that asked "could you consider probation in a case where the victim is a nun?" was a commitment question). Thus, we disagree with appellant that Standefer suggests the prosecutor's voir dire questions regarding the reasonable-doubt standard in this case were improper. Nor does the Court of Criminal Appeals' decision in Garrett persuade us that our conclusion should be different. The court in Garrett held that veniremen are not challengeable for cause merely for setting their threshold for reasonable doubt higher than the minimum required by law to sustain a jury verdict. 851 S.W.2d at 860. A prospective juror who indicates he would require more evidence than the legal minimum to answer a special issue affirmatively is not subject to challenge for cause on the grounds he has a bias or prejudice against the law upon which the State was entitled to rely. Id.; see also Howard v. State, 941 S.W.2d 102, 127-29 (Tex.Crim.App. 1996) (op. on reh'g) (holding that venireman who stated he could not answer future dangerousness issue in the affirmative without evidence the accused had committed a prior murder was not subject to challenge for cause unless the State could show that the venireman's insistence on evidence of prior murder would prevent him from honestly answering the special issue, regardless of whether he was otherwise convinced beyond a reasonable doubt of future dangerousness). Contrary to appellant's contention, Garrett does not suggest the prosecution cannot voir dire venirepersons about their understanding of the meaning of reasonable doubt and ask whether they understand it does not mean proof beyond all doubt. As we have already noted, it is well recognized that such questioning is permissible. Accordingly, we reject appellant's argument that the prosecutor's voir dire statements and questions were in conflict with Garrett. For the foregoing reasons, we overrule appellant's sole issue.