No. 09-06-040 CR
Submitted on February 16, 2007.
Opinion Delivered June 6, 2007. DO NOT PUBLISH.
On Appeal from the 221st District Court Montgomery County, Texas, Trial Cause No. 05-01-00301-CR.
Before McKeithen, C.J., Gaultney and Horton, JJ.
HOLLIS HORTON, Justice.
MEMORANDUM OPINION
A jury found Brandon Monroe Lyons guilty of driving while intoxicated (subsequent offense). See Tex. Pen. Code Ann. §§ 49.04(b), 49.09(2) (Vernon 2003 Supp. 2006). The trial court sentenced Lyons to five years in prison and probated the sentence. Lyons appeals. Bringing a single issue for our review, Lyons contends the prosecutor improperly attempted to commit the venire members to a definition of intoxication. Lyons challenges three specific questions that the prosecutor asked during voir dire. The State argues that Lyons did not preserve his objection to the first question and that the remaining two questions are not improper commitment questions. Question One
[Prosecutor]: Do y'all — now that we have talked about how driving uses the mind and uses the body, do you see why we said that if you have lost the normal use of your mental or your physical faculties? Does everyone agree with that? Mr. — Mr. [juror], what do you think about this definition? [Juror]: I agree with it wholeheartedly. Defense counsel did not object to this question. Instead, he raised his first objection when the prosecutor asked her next question. Thus, Lyons did not preserve his claim that Question One asked for an improper commitment. See Tex. R. App. P. 33.1(a); Halprin v. State, 170 S.W.3d 111, 119 (Tex.Crim.App. 2005). Question Two
[Prosecutor]: Now, what are some of the things you would expect to be able to detect that someone has lost the normal use of their mental or physical faculties? Just using your common sense, what are some of the signs that you might look for? [Defense]: Your Honor, I object under Standefer [ v. State, 59 S.W.3d 177 (Tex.Crim.App. 2001)] and Lydia [ v. State, 109 S.W.3d 495 (Tex.Crim.App. 2003)]. Question Three
[Prosecutor]: One of the things that I am always curious to know is going back to how I said the difference between being sloppy, falling-down drunk and just intoxicated. . . . If [juror A] is the sloppy, falling-down drunk lady, okay, and [juror B] has had nothing to drink and has had no medication, nothing in him, and up — [juror C] has had a little bit to drink, [juror D's] had a little bit more than [juror C] and [juror E's] had a little bit more than [juror D], where do you think on this spectrum that intoxication lies? [Defense]: Objection under Standefer and Lydia. The trial court overruled Lyons's objection to Questions Two and Three. We review a trial court's ruling on an allegedly improper commitment question for an abuse of discretion. Barajas v. State, 93 S.W.3d 36, 38 (Tex.Crim.App. 2002) ("We leave to the trial court's discretion the propriety of a particular question and the trial court's discretion will not be disturbed absent an abuse of discretion."). In Standefer v. State, the Texas Court of Criminal Appeals announced a two-part test for determining if a voir dire question calls for an improper commitment. 59 S.W.3d at 182-83. First, we must consider whether the question is a commitment question and, second, whether the question includes only the facts that would lead to a valid challenge for cause. Id. "If the answer to [question one] is `yes' and the answer to [question two] is `no,' then the question is an improper commitment question,. . . ." Id. "`[A]n attorney cannot attempt to bind or commit a prospective juror to a verdict based on a hypothetical set of facts.'" Id. at 179 (quoting Allridge v. State, 850 S.W.2d 471, 480 (Tex.Crim.App. 1991), cert. denied, 510 U.S. 831, 114 S.Ct. 101, 126 L.Ed.2d 68 (1993)). "Commitment questions are those that commit a prospective juror to resolve, or to refrain from resolving, an issue a certain way after learning a particular fact." Id. Such questions seek promises from venire members that they will base their verdict on specific facts before having heard the evidence. Sanchez v. State, 165 S.W.3d 707, 712 (Tex.Crim.App. 2005). Under Standefer, we first consider whether Questions Two or Three are commitment questions. 59 S.W.3d at 182-83. Question Two asked the venire members to identify "things you would expect to be able to detect that someone has lost the normal use of their mental or physical faculties? Just using your common sense, what are some of the signs that you might look for?" Question Two is not a commitment question "because it seeks only the jurors' general views on signs of intoxication." See Vrba v. State, 151 S.W.3d 676, 678-79 (Tex.App.-Waco 2004, pet. ref'd). The trial court did not abuse its discretion in overruling Lyons's objection to Question Two. The prosecutor's introduction to Question Three presented possible stages of intoxication ranging from a "sloppy, falling-down drunk" to several persons who progressively had "a little bit more" to drink and ranging on to a person who had nothing to drink. Then, the prosecutor asked where "on this spectrum" would intoxication be. The question did not refer to specific amounts of alcohol and used hypothetical facts; thus, the question did not seek a commitment to resolve the intoxication issue "after learning a particular fact." See Standefer, 59 S.W.3d at 179. Further, the prosecutor explained: Well, everyone handles alcohol differently. It could be that someone who never drinks could have one drink and be .08. It could be that someone who drinks frequently all the time has built up a tolerance, and it could be that [juror E] is just starting to show intoxication depending on what she does. It could be that [juror C] never ever drinks at all and with one drink he's lost his normal use of his mental or physical faculties. Thus, the question's context included the concept that the amount of alcohol consumed, by itself, might not be completely reliable in resolving the question of whether a particular person was intoxicated. See Halprin, 170 S.W.3d at 119 (Voir dire record's totality "reflects that the prosecution explained that the veniremember should have an open mind and consider all of the evidence. . . ."). Question Three is not a commitment question and the trial court did not abuse its discretion in overruling Lyons's objection. Lyons's sole appellate issue is overruled. The trial court's judgment is affirmed. AFFIRMED.