Opinion
No. 05-07-01458-CR
Opinion issued January 23, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F07-00447-JU.
Before Justices MORRIS, FRANCIS, and MURPHY. Opinion By Justice FRANCIS.
MEMORANDUM OPINION
Cayetano Perez appeals his conviction for aggravated sexual assault of a child under fourteen years of age. After finding appellant guilty, the jury assessed punishment at thirty-five years in prison. In a single issue, appellant claims the trial court erred in sustaining the State's objection to a voir dire question. We affirm the trial court's judgment. During voir dire, appellant stated he had "a couple of jurors to challenge for cause," including Carter who had stated it would be difficult for him to give probation if appellant were found guilty of aggravated sexual assault of a child. After the trial court, appellant, and the prosecutor questioned Carter individually about his ability to fairly consider the issue of probation, the following occurred:
COURT:
And so what we're trying [to] see is if you could fairly consider it and then if you were convinced it was the proper thing to do, could you vote in favor of probation, or —
CARTER:
If I thought it was the proper thing to do, yes, I could vote for it.
COURT:
Do you have any other questions?
STATE:
No, Your Honor.
COURT:
Anything else?
DEFENSE:
What scenario would you consider it appropriate to give probation?
STATE:
I'm going to object. That's a commitment question.
COURT:
No, that's not a question that we can go into. Anything further?
DEFENSE:
No, Your Honor.Carter was not seated as a juror. Following a three-day trial, the jury found appellant guilty and sentenced him to thirty-five years. This appeal followed. In his sole issue, appellant claims the trial court erred in sustaining the prosecutor's objection that defense counsel's question was a "commitment question." Appellant claims this ruling harmed him by denying his right to an educated and informed use of a peremptory challenge and ultimately effected his constitutional right to a fair trial. To preserve error on appeal regarding a trial court's denial of a challenge for cause, "an appellant must: (1) assert a clear and specific challenge for cause; (2) use a peremptory strike on the complained-of veniremember; (3) exhaust his peremptory strikes; (4) request additional peremptory strikes; (5) identify an objectionable juror; and (6) claim that he would have struck the objectionable juror with a peremptory strike if he had one to use." Allen v. State, 108 S.W.3d 281, 282-83 (Tex.Crim.App. 2003). Although the record reflects appellant struck Carter, the record reflects appellant did not exhaust his peremptory strikes and, as a result, did not request an additional peremptory challenge to remove another veniremember whom he identified as objectionable and who actually sat on the jury. See Newbury v. State, 135 S.W.3d 22, 30-31 (Tex.Crim.App. 2004). Thus, appellant did not preserve this issue for our review. We overrule appellant's sole issue. We affirm the trial court's judgment.