Opinion
No. 02-04-391-CR
Delivered: February 2, 2006.
Appeal from Criminal District Court No. 3 of Tarrant County.
Panel B: DAUPHINOT, WALKER, and McCOY, JJ.
OPINION
I. INTRODUCTION
Appellant Debra Tijerina appeals her conviction for possession of methamphetamine of less than one gram. The controlling issue in this appeal is whether a distinction exists between the voir dire question in this case — "Is there anybody here who feels that you would automatically disbelieve somebody simply because they are a convicted felon, be they a witness, a police officer, a defendant, anybody?" — and the voir dire question — "Do each of you feel as though you could evaluate a witness and his testimony and decide if he's being truthful without automatically dismissing his testimony because of some criminal history?" — which the court of criminal appeals held in Lydia v. State was a commitment question. 109 S.W.3d 495, 499 (Tex.Crim.App. 2003). Because we perceive no distinction between these questions, we hold that the question in this case was a commitment question, we follow our analysis in Lydia on remand, and we conclude that the trial court abused its discretion by prohibiting the defense from asking the question. See Lydia v. State, 117 S.W.3d 902, 904 (Tex.App.-Fort Worth 2003, pet. ref'd) (op. on remand). We apply the harm analysis as instructed by the court of criminal appeals in Rich v. State, and we hold that Tijerina's substantial rights were affected by this error. See 160 S.W.3d 575, 577-78 (Tex.Crim.App. 2005). Accordingly, we reverse the trial court's judgment and remand the case for a new trial.
II. FACTUAL AND PROCEDURAL BACKGROUND
Two Fort Worth police officers stopped Tijerina in her car after observing her drive the wrong way against traffic. Carla Canada was riding in the passenger seat. While one officer ran a check of the information Tijerina gave him, the other officer saw Tijerina reach into a purse sitting on the center console, pull out a day planner, and place it between some bags in the backseat. The officers arrested Tijerina because she had outstanding warrants for her arrest. A subsequent search of the car revealed a baggie of methamphetamine next to the day planner in the backseat and two baggies containing methamphetamine residue inside the day planner. The State charged Tijerina with possession of methamphetamine of less than one gram, and the indictment included an enhancement paragraph alleging Tijerina had two prior felony convictions for forgery by possession of a check with intent to pass. Tijerina pleaded not guilty.
During voir dire, Tijerina's defense counsel asked one of the venire members if he would "automatically disbelieve somebody simply because they are a convicted felon," and the State did not object to this question. The following exchange then took place:
[DEFENSE COUNSEL]:. . . . Is there anybody here who feels that you would automatically disbelieve somebody simply because they are a convicted felon, be they a witness, a police officer, a defendant, anybody?. . . .
[PROSECUTOR]: Judge, I object to that statement, invading the province of the jury, certainly entitled to assess credibility however they like and we object on those grounds.
THE COURT: Sustained.
[DEFENSE COUNSEL]: I would ask that question of each and every juror if I were given the opportunity. Is the Court telling me I can't?
THE COURT: I would sustain the objection.
After both sides made their challenges, Tijerina's defense counsel moved to quash the panel and for a mistrial, reiterating his desire to ask whether the venire members "would simply disbelieve a witness simply because they were a convicted felon." The trial court denied his requests. He then asked to reopen voir dire to ask the question as he had just stated it, and the trial court again denied his request.
III. PROPER COMMITMENT QUESTION
In her first point, Tijerina contends that the trial court erred by sustaining the State's objection to defense counsel's question in voir dire regarding whether potential jurors would automatically disbelieve a convicted felon. The State responds that the question was an improper commitment question because it did not lead to a valid challenge for cause or, in the alternative, that Tijerina was not harmed by the trial court's ruling prohibiting defense counsel from asking the question.
A. Standard of Review Concerning Voir Dire Questions
A 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); Allridge v. State, 762 S.W.2d 146, 167 (Tex.Crim.App. 1988), cert. denied, 489 U.S. 1040 (1989); Lydia, 117 S.W.3d at 904. We leave to the trial court's discretion the propriety of a particular question, and the trial court's discretion will not be disturbed on appeal absent an abuse of that discretion. Sells v. State, 121 S.W.3d 748, 755 (Tex.Crim.App.), cert. denied, 540 U.S. 986 (2003); Barajas, 93 S.W.3d at 38; Allridge, 762 S.W.2d at 163; Lydia, 117 S.W.3d at 904. A trial court abuses its discretion only when it prohibits a proper question about a proper area of inquiry. Barajas, 93 S.W.3d at 38; Allridge, 762 S.W.2d at 163.
B. Standefer Analysis
The determination of whether a question propounded to venire members during voir dire is a proper commitment question is a three-part inquiry. See Standefer v. State, 59 S.W.3d 177, 182-83 (Tex.Crim.App. 2001); see also Lydia, 117 S.W.3d at 905. In Standefer, the court of criminal appeals held that a trial court should first determine if a question is a commitment question. 59 S.W.3d at 182-83. A commitment question is one that commits a prospective juror to resolve, or refrain from resolving, an issue a certain way after learning a particular fact. Id. at 179. If a question is a commitment question, then the court must decide whether it is nevertheless a proper question. Id. at 181-82. For a question to be a proper commitment question, one of the possible answers to the question must give rise to a valid challenge for cause. Id. at 182. However, even if a question meets the "challenge for cause" requirement, the inquiry does not end there. Id. A proper commitment question must also contain only those facts necessary to test whether a prospective juror is challengeable for cause. Id.
Either side may challenge a juror for cause when it can show that the juror is incapable or unfit to serve on the jury. TEX. CODE CRIM. PROC. ANN. art. 35.16 (Vernon Supp. 2005). A juror may be challenged for cause if either side can show "[t]hat the juror has a bias or prejudice in favor of or against the defendant." Id. art. 35.16(a)(9). "A challenge for cause is only proper based on bias if a prospective juror harbors an automatic predisposition toward one view of witness credibility based upon knowledge of a certain fact about the witness." Harris v. State, 122 S.W.3d 871, 880 (Tex.App.-Fort Worth, 2003, pet. ref'd) (emphasis added). The court of criminal appeals has held that a potential juror may be properly challenged for cause and removed "if he cannot impartially judge the credibility of a witness." Ladd v. State, 3 S.W.3d 547, 560 (Tex.Crim.App. 1999), cert. denied, 529 U.S. 1070 (2000). This means that "jurors must be open-minded and persuadable, with no extreme or absolute positions regarding the credibility of any witness." Id.
In this court's original opinion in Lydia, we held that the question, "Do each of you feel as though you could evaluate a witness and his testimony and decide if he's being truthful without automatically dismissing his testimony because of some criminal history?" was not a commitment question. See 81 S.W.3d 486, 492 (Tex.App.-Fort Worth 2002, pet. ref'd), rev'd, 109 S.W.3d at 495. The court of criminal appeals granted Lydia's petition for discretionary review and held that the question was a commitment question because it "asked whether the prospective juror would resolve the issue of witness credibility based on a particular fact — the witness' criminal history." Lydia, 109 S.W.3d at 499-500. The court of criminal appeals remanded the case to this court for an analysis under the remaining prongs of the Standefer test. Id. On remand, we held that the commitment question met the remaining two prongs of Standefer; it would lead to a proper challenge for cause based on a juror's bias, and it included only those facts necessary to test whether a prospective juror was challengeable for cause. See Lydia, 117 S.W.3d at 904, 905-06. Consequently, we held that the trial court did not abuse its discretion by permitting the State to ask this proper commitment question during voir dire. Id.
In Lydia, the victim was a convicted felon, so the State wanted to know whether potential jurors would automatically dismiss a witness's (i.e., the victim's) testimony because of the witness's criminal history. 117 S.W.3d at 905.
Here, the voir dire question that defense counsel sought to ask is substantially the same as the question the State asked in Lydia. Tijerina is a convicted felon, so the defense wanted to know whether potential jurors would automatically disbelieve a witness's (i.e., the defendant's) testimony because of the witness's status as a felon. We see no distinction between the question here, "Is there anybody here who feels that you would automatically disbelieve somebody simply because they are a convicted felon, be they a witness, a police officer, a defendant, anybody?" and the question in Lydia, "Do each of you feel as though you could evaluate a witness and his testimony and decide if he's being truthful without automatically dismissing his testimony because of some criminal history?" Accordingly, we hold that the question at issue here is a commitment question because it asked prospective jurors whether they would resolve an issue, witness credibility, based solely on a particular fact, that the witness was a convicted felon. See Lydia, 109 S.W.3d at 499. Regarding the second prong of Standefer, the question would lead to a proper challenge for cause under article 35.16(a)(9) based on a juror's bias. See TEX. CODE CRIM. PROC. ANN. art. 35.16(a)(9); Ladd, 3 S.W.3d at 560 (holding that a prospective juror may be properly challenged for cause if he cannot impartially judge witness's credibility); Lydia, 117 S.W.3d at 905. The question satisfied the third prong of Standefer because it included only those facts necessary to determine whether a prospective juror was challengeable for cause, reference to a witness's status as a convicted felon. Standefer, 59 S.W.3d at 182; Lydia, 117 S.W.3d at 906.
The State argues that under Standefer's second prong the question at issue would not have led to a proper challenge for cause because the rules of evidence allow a juror to disbelieve a witness on account of her prior felony convictions. See TEX. R. EVID. 609(a) ("For purposes of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record but only if the crime was a felony or involved moral turpitude. . . ."). The State argues, for example, that asking potential jurors if they would automatically believe a police officer is different from asking them if they would automatically disbelieve a convicted felon because, under the rules of evidence, a juror has a right to disbelieve a convicted felon. We agree that a juror may choose to disbelieve any witness once the witness testifies. But if a potential juror states that he would automatically disbelieve a witness who has not yet testified based solely on the witness's status as a felon, that potential juror cannot impartially judge the credibility of the convicted felon witness just as a potential juror who would automatically believe a police officer cannot impartially judge the credibility of a police officer. See Hernandez v. State, 563 S.W.2d 947, 950 (Tex.Crim.App. 1978) (holding that venire member was properly challengeable for cause under article 35.16(a)(9) because she stated her belief that a police officer would not tell a lie under any circumstance). Instead, the potential juror has expressed an absolute position regarding the credibility of a witness who has a felony conviction. See id.; cf. Smith v. State, 907 S.W.2d 522, 531 (Tex.Crim.App. 1995) (holding that venire member was not properly challengeable under article 35.16(a)(9) because he did not state that he would always believe a Texas Ranger, but that he would tend to believe a Ranger but still listen to the facts and circumstances presented). The question posed by defense counsel in voir dire only sought to elicit whether potential jurors had an automatic predisposition to disbelieve a witness who was a convicted felon, and thus, it would have led to a proper challenge for cause. See Harris, 122 S.W.3d at 880.
We conclude that the question proposed by defense counsel during voir dire was a proper commitment question. Accordingly, we hold that the trial court abused its discretion by prohibiting defense counsel from asking potential jurors the question. See Barajas, 93 S.W.3d at 38; Allridge, 762 S.W.2d at 163.
C. Harm Analysis
Having found error, we must conduct a harm analysis to determine whether the error calls for reversal of the judgment. TEX. R. APP. P. 44.2; see Gonzales v. State, 994 S.W.2d 170, 171 (Tex.Crim.App. 1999) (holding that impermissible exclusion of proper question in voir dire is subject to harm analysis). If the error is constitutional, we apply Rule 44.2(a) and reverse unless we determine beyond a reasonable doubt that the error did not contribute to the appellant's conviction or punishment. TEX. R. APP. P. 44.2(a). Otherwise, we apply Rule 44.2(b) and disregard the error if it did not affect the appellant's substantial rights. Tex.R.App.P. 44.2(b); see Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998) (op. on reh'g), cert. denied, 526 U.S. 1070 (1999); Coggeshall v. State, 961 S.W.2d 639, 642-43 (Tex.App.-Fort Worth 1998, pet. ref'd).
Tijerina's complaint is governed by Rule 44.2(b). See TEX. R. APP. P. 44.2(b); Rich, 160 S.W.3d at 577-78. A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)); Coggeshall, 961 S.W.2d at 643. In Kotteakos, the United States Supreme Court explained,
Tijerina argues that Rich does not mandate a Rule 44.2(b) harm analysis and urges us to analyze harm under Rule 44.2(a) because the court of criminal appeals in Rich stated, "The Court of Appeals found this to be non-constitutional error and applied Rule 44.2(b). Rich does not contest this conclusion, so we assume that to be the proper rule." 160 S.W.3d at 577 (emphasis added). More recently, however, in Sanchez v. State, the court of criminal appeals interpreted its Rich opinion as requiring a Rule 44.2(b) harm analysis. 165 S.W.3d 707, 713 n. 16 (Tex.Crim.App. 2005) (interpreting Rich to hold that "Rule 44.2(b) . . . is applicable when voir dire is conducted in a group setting and defendant is prohibited from asking a proper question of the panel"); see also Jones v. State, 179 S.W.3d 770, 774-76 (Tex.App.-Houston [1st Dist.] 2005, no pet.) (noting that, although the law is unsettled, Rich and Sanchez lead to the conclusion that Rule 44.2(b) applies to errors stemming from the exclusion of a proper voir dire question). Thus, following Rich and Sanchez, we will conduct a Rule 44.2(b) harm analysis. But because we conclude that the error here was harmful under our Rule 44.2(b) analysis, we note that we would likewise find it harmful under the less stringent Rule 44.2(a) harm analysis.
[I]f one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.
328 U.S. at 765, 66 S. Ct. at 1248; see also Motilla v. State, 78 S.W.3d 352, 355-58 (Tex.Crim.App. 2002); Johnson v. State, 43 S.W.3d 1, 4 (Tex.Crim.App. 2001). In making this determination, we review the record as a whole. See Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). In Rich, the court of criminal appeals set forth the following considerations for evaluating the harm resulting from the trial court's erroneous exclusion of a proper voir dire question: (1) any testimony or physical evidence admitted for the jury's consideration, (2) the nature of the evidence supporting the verdict, (3) the character of the alleged error and how it might be considered in connection with other evidence in the case, (4) the jury instructions, (5) the State's theory and any defensive theories, (6) closing arguments, (7) voir dire, and (8) whether the State emphasized the error. 160 S.W.3d at 577-78. Here, the testimony admitted for the jury's consideration included testimony from the police officers who stopped and eventually arrested Tijerina and from the forensic scientist who tested the substances that the officers found in the baggies. Additionally, James William Spear testified for the defense that on the day of Tijerina's arrest, he went with her to Carla Canada's motel room and saw Tijerina loan money to Canada. Tijerina went to the bathroom, and while she was in the bathroom, Canada used the money to purchase drugs from another person in the room. When Tijerina came out of the bathroom, she asked Canada if she had just purchased drugs, and Canada said she had not. Tijerina then left with Canada, and Spear stayed in the motel room. Outside the jury's presence, Tijerina called Marcos Guerra to testify that Tijerina often helps others, including Guerra himself, by giving them rides, clothes, food, and money. Defense counsel argued that the trial court should permit Guerra to testify in front of the jury because his testimony showed that Tijerina was the victim of circumstance based upon her usual course of conduct of helping others, but the trial court sustained the State's objection that the testimony was inadmissible character evidence. The physical evidence admitted for the jury's consideration consisted of the confiscated drugs and the warrants for Tijerina's arrest.
The character of the error here was such that Tijerina was prevented from asking a proper commitment question during voir dire and was thereby prevented from challenging for cause any jurors harboring an automatic disbelief of testimony given by a convicted felon — herself. See Tex. Code Crim. Proc. Ann. art. 35.16(a)(9); Harris, 122 S.W.3d at 880. Tijerina was prevented from learning whether potential jurors could impartially judge the credibility of a convicted felon witness — herself. See Ladd, 3 S.W.3d at 560. Tijerina had a right to testify on her own behalf. See Tex. Const. art. I, § 10; TEX. CODE CRIM. PROC. ANN. art. 38.08 (Vernon 2005) ("Any defendant in a criminal action shall be permitted to testify in his own behalf. . . ."). But Tijerina was erroneously prevented from obtaining the information to which she was entitled in order to make an intelligent decision on whether to exercise her right to testify in her own behalf because she did not know whether the jurors would automatically disbelieve her testimony based on her prior felony convictions.
Tijerina claims that she attempted to put her version of the facts before the jury by calling Guerra to testify that she often helped others, supporting her theory that she was a victim of circumstance, but she was not permitted to do so based on the rules of evidence. Had she been able to testify on her own behalf, the rules of evidence would have permitted her to put her version of the facts before the jury and to explain her defensive theory that she was a victim of chance. See TEX. R. EVID. 404(a)(1)(A) (allowing character evidence when presented "by an accused in a criminal case, or by the prosecution to rebut the same").
The jury instructions add nothing to our harm analysis one way or the other. The State's theory was that the baggies and drugs belonged to Tijerina. The defense's theory was that the baggies and drugs belonged to Canada, not Tijerina, and that Tijerina was a victim of circumstance. The error impeded Tijerina's ability to intelligently decide whether to testify to controvert the State's theory that the drugs belonged to her and to support her theory that the drugs did not belong to her. Consequently, the trial court's error had a substantial impact on Tijerina's right to testify on her own behalf.
The voir dire as a whole did not remedy the informational void concerning whether potential jurors would automatically disbelieve a convicted felon's testimony. The State points out that comments made to the venire members during voir dire made clear that the potential jurors were to be impartial to witnesses. During voir dire, the trial court instructed the venire members that they had discretion to believe or not to believe the witnesses after evaluating their credibility. The State also explained to the venire members that each witness was to start out with the same level of credibility. Although it is positive, and certainly appropriate, that the potential jurors were provided with this information, the comments made by the trial court and by the State did not help Tijerina determine whether a potential juror could apply these principles or should be challenged for cause because he or she could not apply the principles and would automatically disbelieve the testimony of a convicted felon despite hearing the court's and the State's comments. See Pieringer v. State, 139 S.W.3d 713, 718-19 (Tex.App.-Fort Worth 2004, no pet.).
Finally, the State mentioned in closing argument that the evidence was "uncontroverted" that Tijerina took the day planner out of her purse, but it did not otherwise emphasize the lack of testimony by Tijerina.
We conclude that, in the context of the entire case against Tijerina, the trial court's error in prohibiting defense counsel from asking potential jurors whether they would automatically disbelieve a witness if she had been convicted of a felony had a significant or injurious effect on the jury's verdict such that Tijerina's substantial rights — specifically her right to testify in her own defense — were affected. See McMurrough v. State, 995 S.W.2d 944, 948 (Tex.App.-Fort Worth 1999, no pet.). We sustain Tijerina's first point.
IV. CONCLUSION
Having sustained Tijerina's first point, we need not address her remaining points. We reverse the trial court's judgment and remand the case for a new trial.
See TEX. R. APP. P. 47.1.