No. 01-03-00469-CR
Opinion issued July 1, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 85th District Court, Brazos County, Texas, Trial Court Cause No. 02-00929-Crf-85.
Panel consists of Chief Justice RADACK and Justices KEYES and BLAND.
JANE BLAND, Justice.
The State charged appellant Lonnie Daniel with two counts of aggravated sexual assault of a child. Daniel entered pleas of not guilty to both counts. The State abandoned count two of the indictment during trial, and proceeded on count one. The jury convicted Daniel and assessed punishment at 18 years confinement. Daniel contends on appeal that the trial court abused its discretion in refusing to permit defense counsel to ask the venire members: "Could you be fair and impartial in a case where the victim is an 8-year-old child?" We conclude that the trial court did not abuse its discretion and therefore affirm.
Standard of Review
A trial court has broad discretion in determining the propriety of a particular question during voir dire, and abuses its discretion only if it prohibits a proper question about a proper area of inquiry. Barajas v. State, 93 S.W.3d 36, 38 (Tex.Crim. App. 2002); Allridge v. State, 762 S.W.2d 146, 163 (Tex.Crim. App. 1988). A trial court acts within its discretion in disallowing questions that attempt to commit jurors to a particular verdict based upon particular facts. Barajas, 93 S.W.3d at 38. Similarly, a trial court acts within its discretion in disallowing questions that are "so vague or broad in nature as to constitute a global fishing expedition." Id. at 39. Propriety of the Proposed Question
In Barajas, the Texas Court of Criminal Appeals held that the trial court acted within its discretion in refusing to allow defense counsel to ask "whether the venire members could be impartial in an indecency case involving a victim who was eight to ten years old or, in the alternative, a victim who was nine years old." Id. at 37-38. The court determined that inquiries about impartiality could be coupled with each fact in a given case, and as such, was too vague to constitute a proper question. Id. In so doing, the Texas Court of Criminal Appeals overruled Nunfio v. State, 808 S.W.2d 482 (Tex.Crim.App. 1991), which had held "that parties may ask whether a venire member can be impartial under a particular set of facts." Barajas, 93 S.W.3d at 41. The question in this case is comparable to that asked in Barajas, and thus the trial court properly sustained the objection to it. Daniel attempts to distinguish Barajas from this case, contending that the defendant in Barajas did not raise a Sixth Amendment effective assistance of counsel claim and that, unlike Barajas, the question in this case was purely hypothetical. Yet, the question in Barajas sought to elicit the same information and was phrased nearly identically to the question that the trial court refused to allow in this case. Moreover, because the question is improper, the trial court's refusal to allow it does not implicate Daniel's Sixth Amendment rights. In McFarland v. State, the Texas Court of Criminal Appeals rejected a similar contention, concluding that the trial court did not deny the effective assistance of counsel in refusing to allow trial counsel to question the jury regarding knowledge about the amount of time a convicted felon actually serves on a life sentence. McFarland v. State, 928 S.W.2d 482, 505 (Tex.Crim. App. 1996), limited on other grounds, Mosley v. State, 983 S.W.2d 249, 263 (Tex.Crim.App. 1998). We conclude that the proffered question was not a proper question pursuant to Barajas, and therefore Daniel's Six Amendment claim is without merit. See Barajas, 93 S.W.3d at 37; see also McFarland, 928 S.W.2d at 505. In addition, Daniel's representation that Barajas is distinguishable on the basis that the question in this case is a hypothetical is partly inaccurate. Daniel ignores the fact that the question in Barajas inquired as to an unidentified victim who was eight to ten years old or, in the alternative, a victim who was nine years old. Barajas, 93 S.W.3d at 37-38. As the question at issue inquired about a range of ages, the Texas Court of Criminal Appeals evaluated the propriety of a hypothetical question in Barajas, and Daniel's attempt to distinguish this case on the basis that Barajas did not involve a hypothetical question is without merit. Conclusion
Following Barajas, we conclude that Daniel's proffered venire question was improper and thus the trial court did not abuse its discretion in refusing to allow it. We therefore affirm the judgment of the trial court.