Opinion
No. 01-01-00389-CR
Opinion issued February 24, 2005.
On Appeal from County Criminal Court at Law No. 5, Harris County, Texas, Trial Court Cause No. 1033687.
Panel consists of Chief Justice RADACK and Justices KEYES and ALCALA.
OPINION ON REMAND FROM THE COURT OF CRIMINAL APPEALS
A jury found appellant, Donovan Keith Wappler, guilty of the misdemeanor offense of driving while intoxicated (DWI). The trial court, in accordance with an agreement between appellant and the State, assessed appellant's punishment at 42 days in jail. On appeal, appellant argued that the trial court erred in imposing a 15-minute time limit on voir dire. We found that by objecting to the trial judge's proposed dismissal of the panel, appellant waived his right to complain that he did not have adequate opportunity to voir dire the panel; if the panel had been dismissed, it would have cured any error caused by the voir dire limitation. See Wappler v. State, No. 01-01-00389-CR (Tex.App.-Houston [1st Dist.] Jan. 9, 2003), reh'g denied, opinion withdrawn, substituted opinion at 104 S.W.3d 661. Appellant subsequently filed a motion for rehearing with this Court. We denied the motion but withdrew our original opinion and substituted a new opinion. See Wappler v. State, 104 S.W.3d 661 (Tex.App.-Houston [1st Dist.] 2003). In our substituted opinion, we held that appellant was estopped from complaining about the time limitation on voir dire because he affirmatively asked the court to seat a jury from the venire that he claimed he did not have adequate opportunity to voir dire. Id. at 665-66.
We also found that (1) a venire member was not challengeable for cause simply because he stated that he would "probably" believe policemen and doctors more than other witnesses; (2) appellant's statements to the constable at the scene of the automobile collision were not obtained through custodial interrogation in violation of Miranda; (3) even if the trial court erred when it failed to suppress appellant's statements, the error was harmless; (4) the trial court's giving of an abstract jury charge not raised by the evidence was not reversible error; (5) appellant's rights under the confrontation clause were not violated; and (6) the evidence presented at trial was factually sufficient to support appellant's conviction. See Wappler v. State, No. 01-01-00389-CR (Tex.App.-Houston [1st Dist.] Jan. 9, 2003), reh'g denied, opinion withdrawn, substituted opinion at 104 S.W.3d 661.
Appellant subsequently filed a petition for discretionary review with the Court of Criminal Appeals challenging our holding that he was estopped from complaining about an inadequate opportunity to conduct voir dire after objecting to the trial judge's expressed intent to dismiss the panel. The Court of Criminal Appeals reversed and remanded the case to this Court with instructions to consider the merits of this issue. Accordingly, on remand, we address the merits of appellant's first point of error, that the trial court erred by giving him only 15 minutes to conduct voir dire.
Appellant did not challenge our other holdings; nor did the Court of Criminal Appeals address our other holdings.
Facts
On December 2, 2000, Mary Chang was on her way from work when she stopped at a yield sign. Appellant, driving a Ford Taurus, hit her car from the rear. Chang got out of her car and saw that appellant was the only person in the Taurus. As Chang approached appellant to ask him what had happened, she could smell alcohol on his breath.
Chang called 911 from her cell phone and then called her husband. Chang noticed that appellant was "unbalanced" when he got out of his car, and that he had to hold onto his car to walk. Chang testified that appellant was "completely drunk." When Chang asked appellant for his insurance information, he handed her three cards, but he did not say anything. Appellant said that he wanted to go to a gas station to make a phone call. Chang was afraid that appellant would have an accident if he left, so she handed him her cell phone. Appellant was unable to dial the phone, so he handed it back to Chang and she dialed the number for him. While they were waiting for EMS, appellant got inside the car. Chang noticed that appellant appeared to be cleaning the inside of his car.
Chang's husband, Steve Fargo, arrived at the scene within 10 to 15 minutes after the accident. Fargo smelled alcohol on appellant's breath and noticed that appellant was disoriented and seemed to be "meandering" around. Fargo called the police from the scene and again told them where the accident was located. Appellant interrupted and insisted that they were on Highway 249, rather than the Sam Houston Parkway at Bammel North Houston.
Harris County Constable Steven Romero arrived at the scene at about 7:50 p.m. He noticed that appellant had alcohol on his breath, that his speech was "kind of slurred," and that he had bloodshot eyes. Fargo told the officer that he had seen appellant wiping his dashboard with a rag before Romero arrived. Romero found a rag on the ground that smelled like alcohol.
Romero performed a horizontal gaze nystagmus (HGN) test, on which appellant exhibited all six clues. He then asked appellant to perform several field sobriety tests, but appellant refused. Appellant was uncooperative, insisted that he had done nothing wrong, and refused to put his hands on the car. Romero grabbed appellant's sleeve, placed appellant's hands on the car, handcuffed him, and patted him down. Romero testified that appellant's pants were wet and that, after he patted appellant down, Romero's hand smelled like urine. Appellant was placed in the back of the patrol car. Romero gave appellant no statutory warnings at the scene.
Evidence of the HGN test was admitted at the pretrial hearing on the motion to suppress, but was not admitted at trial because the State had failed to designate the testifying police officer as an expert witness.
At some point during the investigation, Romero asked appellant whether he had been drinking. Appellant stated that he had been drinking at a casino in Louisiana, but that he had taken his last drink two hours earlier. Romero took appellant to the police station, where he was read his statutory rights. Romero offered appellant a breath test, which he refused. Appellant also refused to perform any field sobriety tests. Appellant's refusals were videotaped and showed appellant to be very belligerent.
Procedural History
During jury selection at appellant's trial, the jury panel initially consisted of 20 people. The trial judge conducted preliminary voir dire of the venire members. The trial judge introduced herself and had the attorneys stand and introduce themselves.
She asked the panel if anyone knew either herself or the attorneys. She asked the panel if they were qualified voters in Harris County; if anyone had ever been convicted of theft or any felony; if anyone was under indictment or legal accusation for theft or any felony; if anyone had ever been arrested; if anyone had himself or had someone close to him been arrested or charged with DWI; if everyone could read English; and if anyone had anything private he wanted to discuss with the Court. The trial judge instructed the venire members that she would speak individually to anyone who had any information on these topics.
At the bench, for about an hour, the trial court and the attorneys each questioned the jurors who had information concerning the topics addressed by the Court. Of the panel of 20 venire members, nine people had information concerning the trial court's voir dire questions. The trial court and both the State's and the appellant's attorneys each individually questioned venire members 1, 2, 4, 7, 10, 11, 12, 15, and 18. The trial court granted six challenges for cause on venire members 1, 2, 4, 10, 12, and 15 and excused them from the courtroom.
The trial court then asked each of the remaining 14 venire members to stand up individually and state his name and occupation. The remaining jurors then individually stated their names and described their occupations. The trial court explained to the jury that each side would conduct voir dire for 15 minutes. Neither the State not appellant's attorney voiced any objections to the Court's time limit of 15 minutes.
The State's attorney questioned the venire panel concerning the elements of the DWI offense, their feelings about police officers, ways jurors could tell whether a driver or person was intoxicated, and the jurors' willingness to convict based on the testimony of one witness. The trial court granted the State an additional minute and a half to finish its voir dire when time was called because the judge had made a few comments from the bench during the State's voir dire.
Appellant's attorney then conducted his voir dire. He asked how many people were missing work to be in court, whether the jurors believed that people were innocent until proven guilty, whether the jurors wondered what appellant had done, and whether anyone had served on a grand jury; he then explained the concept of "beyond a reasonable doubt." Appellant's attorney also asked the venire members whether they could think of any reason why a sober person might not want to take a breath test and whether any of the venire members had experienced any bad interactions with police officers. Appellant's attorney then discussed reasons people might choose not to testify in their own defense at their trial.
When time was called, appellant's counsel requested additional time for voir dire, stating that he had more issues to cover. The judge would not allow him any more time and told him that he could read the questions he wanted to ask the venire members into the record at the break, after the parties had exercised their peremptory strikes. The trial court then granted two challenges for cause, leaving 12 venire members remaining on the panel.
Appellant argued that he should be allowed to make his bill of exceptions before making his strikes and before the jury was impaneled, but the trial judge denied this request. Just before the parties began to exercise their peremptory challenges, however, venire person number 18 asked to approach the bench. The venire person informed the court that he would be biased against the defendant and for the State. The State and the defense both moved to strike venire person 18, and the judge struck him from the panel. After striking this venire person, the judge proposed to dismiss the panel — evidently believing there would not be enough venire members left to constitute a jury after the parties exercised their peremptory strikes. Appellant objected and stated that there was no legal reason for the panel to be excused, because if the defense and the State exercised strikes against the same persons (double-strikes), there would still be enough members to constitute a jury. The judge agreed not to dismiss the panel. The parties both exercised a strike on venire member number six, leaving just enough venire members to obtain a jury. After the jury was seated, appellant renewed his objection to the limitation on voir dire and made a bill of exceptions about the questions he would have asked had he been given additional time. The judge left the courtroom shortly after defense counsel began to make his bill, but counsel for the State remained in court.
The gist of the questions counsel contended he did not have time to ask included: (1) whether the venire could consider the full range of punishment; (2) whether any venire members were members of Mothers Against Drunk Drivers (MADD); (3) whether any of the venire members had been affected by alcohol and whether those experiences would cause them to favor the State; (4) whether any of the venire members would believe a police officer simply because of his occupation and whether any of the venire members were related to or knew police officers, resulting in a bias for the State; (5) whether the venire members could disregard incriminating, but illegally obtained statements; and (6) whether the venire members would find appellant guilty simply because he had been in an accident.
Analysis
Appellant argues that, because he was not able to explore the questions in his bill of exceptions with the venire, he could not intelligently exercise his peremptory strikes. Jury selection and the laws governing it are designed to ensure that juries in criminal cases are fair to both sides; of paramount concern is the defendant's right to exercise peremptory challenges intelligently. See Smith v. State, 703 S.W.2d 641, 643 (Tex.Crim.App. 1981). The purpose of voir dire is to (1) develop rapport between the officers of the court and the jurors; (2) expose juror bias or interest warranting a challenge for cause; and (3) elicit information necessary to use peremptory challenges intelligently. See Ganther v. State, 848 S.W.2d 881, 882 (Tex.App.-Houston [14th Dist.] 1993, pet. ref'd). In Texas, trial courts have broad discretion over the jury selection process. Barajas v. State, 93 S.W.3d 36, 38 (Tex.Crim.App. 2002). The trial court's right to dispatch its business expeditiously must be justly balanced against society's interest in seating fair juries. See McCarter v. State, 837 S.W.2d 117, 120 (Tex.Crim.App. 1992).
A trial court may impose reasonable restrictions on the exercise of voir dire examination, including reasonable limits on the amount of time each party can question the jury panel. Caldwell v. State, 818 S.W.2d 790, 793 (Tex.Crim.App. 1991), overruled on other grounds by Castillo v. State, 913 S.W.2d 529 (Tex.Crim.App. 1995); Ratliff v. State, 690 S.W.2d 597, 597 (Tex.Crim.App. 1985). There is no bright-line rule identifying what amount of time allowed for voir dire is too short. The amount of time allotted is not, alone, conclusive. S.D.G. v. State, 936 S.W.2d 371, 380 (Tex.App.-Houston [14th Dist.] 1996, pet. denied). A reasonable time limitation for one case may not be reasonable for another case; thus, each case must be examined on its own facts. Ratliff v. State, 690 S.W.2d 597, 601 (Tex.Crim.App. 1985); Ganther, 848 S.W.2d at 882.
Standard of Review
The trial court does not err in restricting voir dire unless it abuses its discretion. Barajas, 93 S.W.3d at 38. Absent an abuse of discretion, we will not reverse the trial court's refusal to allow defense counsel additional voir dire time. McCarter v. State, 837 S.W.2d 117, 119 (Tex.Crim.App. 1992); Smiley v. State, 129 S.W.3d 690, 696 (Tex.App.-Houston [1st Dist.] 2004, no pet.). A trial court abuses its discretion when it prohibits defense counsel from asking proper voir dire questions. Rhoades, 934 S.W.2d at 118. When a party complains of an inability to collectively question the venire, a two-part test applies: (1) whether the complaining party attempted to prolong the voir dire by asking questions that were irrelevant, immaterial, or unnecessarily repetitious and (2) whether the questions the party was not permitted to ask were proper voir dire questions. McCarter, 837 S.W.2d at 119. When a party's voir dire is terminated as he attempts to question venire members individually, we must also consider a third factor — (3) whether the party was prevented from examining a prospective juror who actually served on the jury. Id.; Ratliff, 690 S.W.2d at 600. Here, appellant's voir dire was terminated while his counsel was asking questions of venire member 19. Therefore, we apply the three-part test set forth above. See McCarter, 837 S.W.2d at 120.
Bill of Exceptions
In his bill of exceptions, appellant's attorney asserted that, had he been permitted additional time to question the venire panel, he would have explored several issues with the panel. On appeal, he complains about most of the issues he raised in his bill of exceptions, contending that:
(1) he was "going to ask whether the jury could consider the full range of punishment in this case including the minimum punishment range. None of the venire panels were examined on that topic.";
(2) he was "not permitted to question the panel on . . . whether anyone on the panel was a member of Mothers Against Drunk Drivers (MADD) or how members of the panel's lives had been affected by alcohol, either positively or negatively and whether such experiences might cause panel members to hold a particular bias in favor of the State.";
(3) he "was unable to more adequately discuss feelings about police officers with the jury." He acknowledged that one panel member did mention that she was related to two police officers. However, his complaint concerned an inability due to the time restriction to, "ask all of venire members whether they knew police officers, or whether they could be more likely to believe the testimony of police officers simply because of what those individuals did for a living. Further, [appellant's attorney] would have attempted to ask the venire panel about whether they had a bias in favor of police officers and in favor of the State in this case because of the same.";
(4) he "was also hoping to question the venire panel on the issue of illegally obtained statements, specifically because it is an issue in this case. And the defense plans on requesting a jury instruction regarding the same.";
(5) he would have asked the venire panel, "whether they could disregard all statements which were taken in violation of defendant's Sixth Amendment rights, his right under Article I, Section 10 of the Texas Constitution as well as Article 38.22 of the Code of Criminal Procedure by virtue of Article 38.23 of the Code of Criminal Procedure. More specifically[,] the issue in this case was whether [appellant] had made incriminating statements to the police officer while [appellant] was under arrest and without the benefit of Miranda warnings;
At this point, appellant's attorney stated, "For the record, Judge Law has stepped out of the room and has not been present during the making of this bill of exception. And although I've given all the case law to Judge Law, I don't believe that this bill of exception is being fairly considered . . . The Defense has been harmed . . . [a]nd the Defense has not been able to intelligently exercise the peremptory strikes because the Defense has not been permitted to question the venire panel on those topics."
(6) he would have asked, "whether people have had a problem with alcohol or alcoholism in their families and whether those types of problems would affect venire members service as a juror." Appellant's attorney stated that he would have more thoroughly examined this issue with one of the seated jurors in the case, venire member 18, who had a son who was arrested for DWI in Galveston three years ago;
(7) he "would have liked to have asked that panel whether the fact that [appellant] was involved in a motor vehicle accident might cause the jurors to conclude he's guilty on that basis and with nothing more."Propriety of Questions
A "proper" voir dire question is one that seeks to discover a venire member's views on issues relevant to the case. Rhoades, 934 S.W.2d at 119. McCarter, 837 S.W.2d at 121-122. An otherwise proper question is impermissible, however, if it attempts to commit the juror to a particular verdict based on particular facts. Barajas, 93 S.W.3d at 38. In addition, a voir dire question that is so vague or broad in nature as to constitute a global fishing expedition is not proper and may be prohibited by the trial court. Id. at 39.
Counsel's first intended question, regarding the range of punishment, was an appropriate question on a topic that had not been previously covered. See Goodspeed v. State, 120 S.W.3d 408, 413 (Tex.App.-Texarkana 2003, no pet.) (noting that proper voir dire examination would have ensured that all jurors were qualified to consider entire range of punishment). Counsel's second intended question, concerning membership in MADD and the impact of alcohol on the venire member's lives, was a proper question because it was not overly broad and addressed an issue relevant to the case. His third intended question, regarding bias toward police officers, was also a proper one. His fourth and fifth intended questions, concerning "illegally" obtained statements and Miranda warnings, were a fishing expedition; despite appellant's assertion that he intended to request a jury instruction on the issue of illegally obtained statements, his counsel did not request such an instruction. Counsel's sixth question was simply a variation of his first question regarding the impact of alcohol on the lives of individual venire members. Although appellant contends his trial counsel would have questioned venire member 18 further about this subject, we note that the trial court had granted both parties' challenges for cause to venire member 18, dismissing her from the panel before counsel made his bill of exceptions. Counsel's seventh intended question — whether the venire members would conclude that appellant was guilty simply because he was involved in an automobile accident — was improper because it sought a commitment from the venire members.
Of the intended questions that appellant complains about on appeal, we have concluded that three were proper questions. Appellant, therefore, satisfied the second prong of the McCarter test. See 837 S.W.2d at 119. Accordingly, we turn to the question of whether, had counsel adequately managed his time during voir dire, he would have had sufficient time to question the venire members concerning their ability to consider the full range of punishment, membership in MADD and the impact of alcohol on their lives, and the issue of bias toward police officers.
Time Management
Counsel's use of time during voir dire was neither a model of efficiency nor an egregious attempt to prolong the voir dire. Although counsel repeated questions on the same topics already discussed by the trial court during its voir dire and the individual voir dire and by the State — such as questions concerning the venire members' feelings about police officers, whether anyone near to the venire members had been arrested for DWI, and the venire members' feelings about alcohol — we cannot conclude that counsel's repetition of the same topics was the result of an attempt to prolong voir dire unduly. We have reviewed the record, and although it shows that counsel discussed a few matters in a somewhat repetitive manner, the overall tenor and content of his voir dire does not show that the questions he posed to the venire members were irrelevant, immaterial, or unnecessarily repetitious. See McCarter, 837 S.W.2d at 121 ("[D]efense counsel may not be precluded from the traditional voir dire examination simply because the questions asked are repetitious of those asked by the court and the prosecutor"). Therefore, appellant satisfied the first prong of the McCarter test.
Truncated Examination of Jurors Who Actually Served on the Jury
The trial court terminated defense counsel's voir dire examination after 15 minutes, while counsel was questioning venire person number 19, who actually served on the jury. Over defense counsel's objection, the court refused to permit counsel to make his bill of exceptions to the terminated voir dire prior to seating the jury. The judge seated the jury without hearing the questions the defense would have put to them, then left the courtroom while the bill of exceptions was being read into the record. The trial judge thus deprived herself of the opportunity to evaluate appellant's proposed voir dire questions to determine whether the additional questions were necessary or proper to enable counsel to intelligently exercise his peremptory strikes. Accordingly, we hold that the trial court abused its discretion by terminating voir dire and seating the jury without hearing and evaluating the questions defense counsel was not permitted to ask. See Ganther, 848 S.W.2d at 282 (holding that purpose of voir dire includes eliciting information necessary to intelligent exercise of peremptory strikes); see also Ratliff, 690 S.W.2d at 600 (requiring that appellate court consider whether party was prevented from examining juror who actually served on panel). We turn, therefore, to whether the error was harmless.
Harm Analysis
The Sixth Amendment guarantees the right to a trial before an impartial jury. Franklin v. State, 138 S.W.3d 351, 354 (Tex.Crim.App. 2004). The right to question venire members to exercise peremptory challenges intelligently is an essential part of that Sixth Amendment guarantee. Id.; see also Gonzales v. State, 994 S.W.2d 170, 171 (Tex.Crim.App. 1999) ("[T]he right to pose proper questions during voir dire examination is included within the right to counsel under Article I, § 10, of the Texas Constitution."). If the trial court abuses its discretion by denying a defendant the right to propound a proper question to prospective jurors, we must conduct a harm analysis. Gonzales, 994 S.W.2d at 171; see also Cena v. State, 991 S.W.2d 283, 284 (Tex.Crim.App. 1999) (directing the appellate court to conduct a harm analysis of the trial court's error in refusing to permit the defendant to ask the jury panel a proper question). When the record in a criminal case reveals constitutional error subject to harmless error review, we must reverse the trial court's judgment unless we determine beyond a reasonable doubt that the error did not contribute to the conviction or punishment. Tex.R.App.P. 44.2(a); Franklin, 138 S.W.3d at 354.
Except for certain federal constitutional errors deemed by the United States Supreme Court to be "structural" error, no error is categorically immune from a harmless error analysis. Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App. 1997). Structural error is "a defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself. Arizona v. Fulminatne, 499 U.S. 279, 298, 111 S. Ct. 1246, 1265 (1991). The Texas Court of Criminal Appeals has expressly declined to hold that erroneously restricting proper questions at jury voir dire is federal constitutional structural error and has held, instead, that such errors are subject to harmless error analysis. Gonzales, 994 S.W.2d at 171.
Rule 44.2(a) provides:
(a) Constitutional Error. If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.
TEX. R. APP. P. 44.2(a).
In Rios v. State, we opined, following Gonzales, that, while harmless error review under Rule 44.2(a) is the correct standard for determining constitutional error when proper voir dire questions are denied, it was not possible to conduct a meaningful harm analysis in most cases or in that case because the only way to attempt to measure the harm would be to ask the jurors the proposed voir dire questions. See 4 S.W.3d 400, 402 (Tex.App.-Houston [1st Dist.] 1999, pet. dism'd); see also Gonzales, 994 S.W.2d at 171-72. This Court decided Rios, however, before it had the benefit of later opinions from the Court of Criminal Appeals directing various appellate courts to conduct a harm analysis. Moreover, unlike the case before us, there was no indication in Rios that the trial court or the State had posed substantially the same questions that defense counsel was prevented from asking. Id.
Cf. Sims v. State, No. 01-98-00637-CR (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd) (2000 WL 424447) (not designated for publication) (holding that defense counsel's voir dire did not contribute to appellant's conviction or punishment beyond a reasonable doubt where defense counsel was denied opportunity to question each prospective juror about juror's understanding about State's burden of proof where, later in voir dire, counsel explained that the burden of proof never shifted, that defense was not required to cross-examine witnesses or to put on evidence, and that State must prove guilt beyond a reasonable doubt or jury must acquit; State's evidence against defendant was strong; and jury was properly charged concerning State's burden of proof).
Because the subjects of the proposed questions here were previously explored with the jury, we conclude that we are able to conduct a meaningful harm analysis. Our task is to calculate, as nearly as possible, the probable impact of the error on the jury in light of the other evidence adduced at trial. McCarthy v. State, 65 S.W.3d 47, 55 (Tex. 2002) (citing Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. 2000). We are aided in our analysis by recourse to Franklin, in which the Court of Criminal Appeals found harmful error under Rule 44.2(a).
In Franklin, defense counsel had asked the venire members during voir dire whether any of them knew any of the participants in the trial; none indicated that he did. 138 S.W.3d at 352. However, when the State called the victim as its first witness, one of the jurors notified the judge that she recognized the witness as a member of her daughter's girl scout troop, of which the juror had been assistant leader. Id. The court asked the juror whether she could base her judgment solely on the evidence, and the juror stated that she could. The court then denied defense counsel's motion for mistrial based on the assertion that he would have exercised a peremptory challenge against the juror had he known about the relationship. Id. The court also refused to allow additional questioning about the juror's relationship with the victim, how long the relationship lasted, whether she could set aside the relationship in deciding the case, and whether she would give more or less credence to the victim's testimony and truthfulness because of the relationship. Id.
The Court of Criminal Appeals concluded that the court of appeals had properly applied the standard of harm under rule 44.2(a) in reversing and remanding the case for a new trial. Franklin, 138 S.W.3d at 355. The Court of Criminal Appeals held that "all of these factors together" — the juror's failure to reveal her relationship to the victim, the trial judge's denial of a mistrial, and the judge's refusal to allow defense counsel to question the juror about her relationship to the victim — affected the defendant's right to trial by an impartial jury. Id. The court pointed out that, to show bias in Texas, the defendant must show that the juror withheld material information in voir dire despite the defendant's exercise of due diligence. Id. at 355. Thus, it was not necessary that the defendant show actual bias on the part of the juror, but only that the concealed information had a tendency to show bias, which the relationship between the juror and the victim did show. Id. at 356.
In this case, in contrast to Franklin, voir dire lasted approximately an hour and a half, including the individual voir dire of venire members. The two key issues addressed by the trial court were the venire members' experiences with alcohol, including DWI, and their feelings about police officers. The State's attorney then questioned the venire panel concerning the elements of the DWI offense and their feelings about police officers. Appellant's attorney also asked the venire members whether they could think of any reason why a sober person might not want to take a breath test and whether any of the venire members had experienced any bad interactions with police officers. The principal focus of the voir dire as a whole was thus on two of the three issues appellant contends he was not permitted to adequately address — experiences with alcohol and bias toward police officers. The record also shows that appellant and the State agreed to a punishment of 42 days in jail, and the trial court followed this agreed recommendation. Accordingly, the third issue appellant was unable to address — whether a venire person could consider the entire range of punishment — was rendered moot as a measure of harm caused the defendant by the denial of the opportunity to question the venire members.
The record also shows that evidence of appellant's guilt was substantial. The driver of the other car testified that appellant was "completely drunk" and unable to dial a cell phone; her husband testified that he smelled alcohol on appellant's breath and that appellant seemed disoriented. The police officer at the scene also testified that appellant had alcohol on his breath, that his speech was slurred, and that his eyes were bloodshot. The officer also mentioned that appellant had apparently wet his pants.
Finally, appellant's claim is solely that he was harmed because he was "not able to intelligently exercise the peremptory strikes because the Defense has not been permitted to question the venire panel on those topics." Appellant has made no claim, nor has he presented any evidence, that the jury as finally constituted was actually biased or that any information was concealed that would have tended to show bias if his trial counsel had not been prevented from asking those proper questions he was denied the opportunity to ask.
Given this record, we conclude beyond a reasonable doubt that the trial court's erroneous limitation of defense counsel's voir dire did not contribute to appellant's conviction or to his punishment.
Conclusion
We overrule the point of error on remand.
We affirm the trial court's judgment.