Opinion
No. 4-02-00624-CR
Delivered and Filed: June 14, 2006. DO NOT PUBLISH.
Appeal from the County Court at Law No. 12, Bexar County, Texas, Trial Court No. 764904, Honorable Michael E. Mery, Judge Presiding. Affirmed.
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Appellant Arthur Garcia Sanchez was convicted of driving while intoxicated. He appealed, arguing that the trial court erred during voir dire by overruling his objections to improper commitment questions posed by the State and that the trial court erred in overruling his motion to suppress. On May 5, 2004, we issued an opinion, holding that Sanchez had not been harmed by the trial court overruling his objections to the commitment questions and that the police officer had reasonable suspicion to stop Sanchez for driving erratically. Sanchez v. State, No. 04-02-00624-CR, 2004 WL 946704 (Tex.App.-San Antonio 2004), vacated, 165 S.W.3d 707 (Tex.Crim.App. 2005). The Texas Court of Criminal Appeals then granted Sanchez's petition for discretionary review on the following question: "What is the appropriate test for harm when the State is allowed to improperly commit jurors to a set of facts?" Sanchez v. State, 165 S.W.3d 707, 709 (Tex.Crim.App. 2005). Holding that the proper test for harm is set out in Texas Rule of Appellate Procedure 44.2(b), it remanded the case to us for reconsideration. Id. On remand, Sanchez argues that the trial court erred in overruling his objection to the State's improper commitment question and that he was harmed as a result. We disagree and affirm the judgment of the trial court.
Background
On September 1, 2000, at approximately 1:00 a.m., San Antonio Police Officer Arriaga observed a vehicle on Interstate 35 weaving and having difficulty staying in a single lane. Officer Arriaga stopped the vehicle, which was being driven by Sanchez. According to Officer Arriaga, Sanchez's breach smelled of alcohol, his eyes were bloodshot, and his speech was slurred. Officer Arriaga also testified that Sanchez said that he is "a drunk." As a result of polio, Sanchez walked with the assistance of a cane and had braces on his legs. Because of Sanchez's physical disability, Officer Arriaga did not ask Sanchez to perform any physical field sobriety tests. Instead, Officer Arriaga asked Sanchez's permission to conduct a horizontal gaze nystagmus test ("HGH test"). Sanchez, however, refused. Officer Arriaga then requested that Sanchez recite the alphabet. Sanchez began reciting the alphabet several times, but never finished; he would stop at the same point and ask the officer what was going to happen to him. During voir dire, anticipating that the evidence at trial would show that Sanchez was physically disabled, the State asked the members of the venire panel whether they would have a bias in favor of or give more benefit to a person who was physically disabled. Sanchez objected, arguing that the State's questions were improper commitment questions. The trial court overruled Sanchez's objections. The only member of the venire panel to answer was Juror Nichols, who stated, "Not unless that there was an establishment that the disability had something to do with what led others to believe." However, because Nichols was juror number twenty and the six-member jury was chosen before reaching her number, she did not serve on the jury. Thus, neither side was required to use a peremptory strike against her. Sanchez was found guilty of driving while intoxicated and was sentenced to 120 days in jail, probated for one year.Commitment Questions
The trial court has broad discretion over the process of selecting a jury. Barajas v. State, 93 S.W.3d 36, 38 (Tex.Crim.App. 2002). Thus, we review a trial court's ruling for abuse of discretion. Id. A defendant has a constitutional right to a trial "by an impartial jury." U.S. Const. amend. VII; Tex. Const. art. 1, § 10; Sanchez v. State, 165 S.W.3d 707, 712 (Tex.Crim.App. 2005). The purpose of prohibiting improper commitment questions is "to ensure that the jury will listen to the evidence with an open mind — a mind that is impartial and without bias or prejudice — and render a verdict based upon that evidence." Id. A commitment question is a question that requires a venireperson to promise that she will base her verdict or course of action on some specific set of facts before she has heard any evidence, much less all of the evidence in its proper context." Id. Not all commitment questions, however, are improper. Standefer v. State, 59 S.W.3d 177, 181 (Tex.Crim.App. 2001). A commitment question is improper (1) when the law does not require the commitment, such that a juror would not be disqualified for cause by being influenced by a particular fact or by having a particular attitude or opinion, or (2) even if the question meets the challenge for cause requirement, if it also includes facts in addition to those necessary to establish a challenge for cause. Id. at 182-83. An improper commitment question attempts to create a bias or prejudice in the members of the venire panel before they have heard the evidence, whereas a proper voir dire question attempts to discover a venireperson's preexisting bias or prejudice. Sanchez, 165 S.W.3d at 712. Here, during voir dire, the prosecutor asked the venire members whether they would be influenced by Sanchez's disability:State: Who commits DWI? What does that person look like? Anybody know what a person looks like that commits DWI? Are they tall? Are they short? Male, female?
Juror Nichols: Everyone, they are all around us.
State: It could be anybody. Would you agree with that? There is no set — If you're drunk and you drive, then you can commit the crime, right? It's pretty much that simple. I know — There may be some evidence in the case, you may hear some evidence about physical disability. And my question is: Will anyone here who is sensitive or just thinks that their thinking process lends them to feel the need to be more protective of people with physical disabilities? Is there anyone here who thinks they may have a hard time reaching a verdict based on the fact that there may be evidence of a physical disability?
Defense: Attempt to commit, Your Honor, once again.
Court: Overruled.
Juror Nichols: Not unless that there was an establishment that the disability had something to do with what lead others to believe.
State: Well, let's say — that the loss of physical — normal physical or mental faculties was there — and that is a very good point let's say you are convinced beyond a reasonable doubt that a person has lost the use of their normal use of . . .
Defense: Your Honor, I will object to the question; attempting to commit, Judge . . .
Court: Well, I didn't have the benefit of the entire question, but your points are well taken so far. I'll let you finish the question and I'll rule on the objection.
State: Assuming all the facts that I just said, you remember what I said. Ms. Nichols? Assuming that you have evidence beyond a reasonable doubt that a person [has] lost the normal use of their physical faculties, if you're selected as a juror mental faculties — do you think you would have a bias in favor of or give more benefit to a person who was physically disabled? Do you think you would? Does anybody feel like they might do this or that they would do that? Anybody in the first row?
Defense: Judge, again, my objection is on the table, Your Honor. I haven't heard a ruling from the Court.
Court: Given the way that the State — the question was asked, I am going to overrule it.
Defense: All right. Thank you, Judge.
State: Anybody on the first row can promise they can treat a defendant the same whether — obviously you will take into account the physical disability, as it is an issue, as it relates to this second offense, but you can't have a bias or prejudice of any particular person for any reason, so can you all promise that you will treat this criminal defendant as — just like you would any other?(emphasis added). Sanchez argues that the State's hypothetical questions "required jurors to ignore Mr. Sanchez's physical disabilities when deciding whether he had lost the normal use of his physical faculties." According to Sanchez, "[t]his is contrary to the law and a juror would not be subject to challenge for refusing to discount the physical state of the defendant." For support, Sanchez relies on the following statement in Hernandez v. State: "A defendant cannot be found to be intoxicated if he lacks the normal use of mental or physical faculties for a different reason, such as disability, illness, fatigue, stress, or clumsiness." 107 S.W.3d 41, 51 (Tex.App.-San Antonio 2003, pet. ref'd); see also Massie v. State, 744 S.W.2d 314, 316 (Tex.App.-Dallas 1988, pet. ref'd) (explaining that if the evidence showed a defendant could not use his faculties on the occasion in question "in the manner in which the normal non-intoxicated person would be able to use his faculties, the evidence is sufficient to convict him unless the jury finds his inability to perform on that occasion is not due to intoxicants (e.g. diabetes, epilepsy)"). While we agree that a defendant cannot be found to be intoxicated if he lacks the normal use of mental or physical faculties because of his disability, we disagree that the State's questions were improper commitment questions. When read in context, it is clear that the State was not asking the venire members to disregard a person's disability in considering whether that person had lost the normal use of his mental and physical faculties. The prosecutor clearly stated to the venire members, " [O]bviously you will take into account the physical disability, as it is an issue, as it relates to this second offense . . ." (emphasis added). The prosecutor was merely asking if the venire members would be biased in favor of a defendant because of his disability. And, the State may challenge such a juror for cause. See Tex. Code Crim. Proc. Ann. art. 35.16(a)(9) (Vernon Supp. 2005) (allowing the State or the defense to challenge a juror for cause if the juror "has a bias or prejudice in favor of or against the defendant"); id. 35.16(b)(3) (allowing the State to challenge a juror for cause if that juror "has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment"). We, therefore, hold that the questions posed by the State were not improper commitment questions.
Harmless Error
Even if the State's questions were improper commitment questions, any error is harmless. In its opinion, the court of criminal appeals held that we should address the potential harm of the State's improper commitment questions by applying Texas Rule of Appellate Procedure 44.2(b). Sanchez, 165 S.W.3d at 713. Under rule 44.2(b), we focus "upon whether a biased juror — one who had explicitly or implicitly promised to prejudge some aspect of the case because of the State's improper questioning — actually sat on the jury." Sanchez, 165 S.W.3d at 713; see also Tex.R.App.P. 44.2(b). The ultimate harm question is whether the defendant was tried by an impartial jury, or conversely, whether the jury or any specific juror was "`poisoned' by the State's improper commitment questions on a legal issue or fact that was important to the determination of the verdict or sentence?" Sanchez, 165 S.W.3d at 713. According to the court of criminal appeals, although there is no single, specific rule by which we should assess this question of harm, factors we may consider "in determining whether a trial court's error in permitting the State to ask improper commitment questions to an entire jury panel over the defendant's objection," include:(1) whether the questions were unambiguously improper and attempted to commit one or more veniremen to a specific verdict or course of action;
(2) how many, if any, veniremen agreed to commit themselves to a specific verdict or course of action if the State produced certain evidence;
(3) whether the veniremen who agreed to commit themselves actually served on the jury;
(4) whether the defendant used peremptory challenges to eliminate any or all of those veniremen who had committed themselves;
(5) whether the defendant exhausted all of his peremptory challenges upon those veniremen and requested additional peremptory challenges to compensate for their use on improperly committed veniremen;
(6) whether the defendant timely asserted that a named objectionable venireman actually served on the jury because he had to waste strikes on the improperly committed jurors; and
(7) whether there is reasonable likelihood that the jury's verdict or course of action in reaching a verdict or sentence was substantially affected by the State's improper commitment questioning during voir dire.Id. at 714. Here, the questions were not unambiguously improper as they are helpful to discover bias towards the defendant because of his physical disability. And, only one venire member responded to the questions, and she ultimately, did not serve on the jury. Moreover, while the record shows that Sanchez requested an additional strike, it does not reveal whether that strike was necessary. That is, it does not show that Sanchez had exhausted all of his strikes removing venire members who had been improperly committed or that he had exhausted all of his peremptory strikes. With respect to the final factor, the jury was presented with evidence that on the night in question, Sanchez had difficulty driving in a single lane and was weaving. According to Officer Arriaga, Sanchez smelled of alcohol, was very repetitive, and had bloodshot eyes and slurred speech. Officer Arriaga testified that Sanchez's entire demeanor indicated that he was intoxicated. Furthermore, the jury viewed the videotape depicting the initial conversation and interaction between Officer Arriaga and Sanchez. The videotape showed that when Officer Arriaga asked Sanchez how much he had to drink, Sanchez responded, "Not enough." And, Sanchez told the officer that he was "a drunk." Sanchez was also not very responsive and would answer to most of the officer's questions with, "I live right there." After reviewing the evidence presented against Sanchez at trial, there is a reasonable likelihood that the jury's verdict or course of action in reaching a verdict was not substantially affected by the commitment questions posed by the State. See Sanchez, 165 S.W.3d at 714. In considering all of the above factors, we hold that any error is harmless under Texas Rule of Appellate Procedure 44.2(b). See Tex.R.App.P. 44.2(b).