      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                      NO. 03-08-00607-CR



                               Marco Antonio Munoz, Appellant

                                                v.

                                  The State of Texas, Appellee


            FROM COUNTY COURT AT LAW NO. 5 OF TRAVIS COUNTY,
NO. C1CR07-218318, HONORABLE NANCY WRIGHT HOHENGARTEN, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury convicted appellant Marco Antonio Munoz of driving while intoxicated. See

Tex. Penal Code Ann. § 49.04 (West 2003). Munoz was sentenced to 180 days’ imprisonment and

assessed a $2,000 fine, probated to fourteen months of community supervision and a $1,800 fine.

In three issues on appeal, Munoz argues that the trial court (1) improperly limited his trial

counsel’s voir dire questions regarding the venire panelists’ ability to consider the full range of

punishment; (2) improperly imposed a time limit on voir dire; and (3) demonstrated actual bias

against Munoz and his counsel through its statements during voir dire. Because the trial court did

not err in restricting Munoz’s voir dire and did not demonstrate bias against Munoz or his counsel,

we affirm the judgment of conviction.
                                           BACKGROUND

               Munoz was arrested for driving while intoxicated on September 7, 2007. He was

charged by information and went to trial on August 18, 2008. At jury selection, the trial court

allotted thirty minutes to each side to conduct voir dire. Neither the State nor Munoz objected to the

time limit or requested additional time.

               During its voir dire, the State questioned the venire panel regarding their ability to

consider the full range of punishment for the charged offense, a Class B misdemeanor DWI. The

State told the panel:


       Now, the other thing that you will have to do is, if you believe that the defendant is
       guilty beyond a reasonable doubt, you’ll have to assess punishment, and the
       punishment range is anywhere from three days up to the maximum of 180 days. And
       to be a juror on this panel, you have to be able to consider the full range. So you
       have to imagine in your mind a set of circumstances where three days is appropriate
       for somebody and all the way up to 180 days is appropriate.


The State then asked the panel, row by row, if anyone “would have trouble” considering the entire

range of punishment. No panelists indicated they would.

               Defense counsel also spoke to the panelists about the requirement that they consider

the full range of punishment during his voir dire.1 He then asked panelist one whether she thought “a

three-day sentence is something that would be sufficient to send the message about DWI.” The State

objected that defense counsel was asking an improper commitment question. See Sanchez v. State,


       1
          Defense counsel’s examination regarding the range of punishment came near the end of
his voir dire, after he had thoroughly questioned the panelists regarding their attitudes toward
drinking alcoholic beverages, the accuracy of field sobriety tests, and the legal definition of
“impairment,” among other issues.

                                                  2
165 S.W.3d 707, 712 (Tex. Crim. App. 2005) (drawing distinction between questions “intended to

discover bias against the law” and questions aimed at “determin[ing] how jurors would respond to

the anticipated evidence and commit them to a specific verdict based on that evidence”). Defense

counsel then argued that he could commit the panelists on their ability to give the minimum sentence

because they are required to be able to consider the full range of punishment and, in this context, to

consider means to give:


       If somebody ever said, I could consider probation for your loved one, I would never
       give it, but I could consider it, just like flapping my arms and flying like a bird, I
       could consider it. I would never do it. I could never give it. Is that a fair definition
       of “consider”? Who thinks that’s a fair definition of “consider”?

       What about this: In order to be able to consider, you have to actually be able to give
       it. Does that make sense, [panelist twelve]?


The trial court interrupted defense counsel, saying, “Well, there’s actually a difference and I think

the courts have dealt with that difference.” The Court then sustained the State’s earlier objection as

to form and told defense counsel, “If you want to ask it in a different form, you’re certainly able to

do so.” The following exchange then took place:


       Defense:        Is there anyone who thinks here that they would be able to consider
                       something that they would never, ever do?

       Panelist:       I don’t understand the question.

       Defense:        Exactly. I’m with you in the same place. What I’m trying to figure
                       out is, there are some people who say three days is never enough
                       punishment, and then a lot of times they come back and they can say,
                       well, I could consider it, but then what do they say, [panelist eight]?
                       But I’d never give it, to which I’d say, is that a fair definition of
                       “consider”?

                                                  3
       The Court:     [Counsel]—

       Defense:       Yes, Judge.

       The Court:     —I think that I have sustained the objection.

       Defense:       Right. And now, Judge, I’m conducting voir dire as to find out these
                      biases of these jurors, which will help me effectively exercise my
                      peremptory challenges. So the data that I am getting is useful to me
                      in representing Marco. So I would like to continue asking, not for
                      purposes of committing this jury, but just for the purposes of getting
                      data, which I believe is allowed under Standefer, Maddox, Nunfio,
                      and all the cases that I’ve read.2

       The Court:     Well, the State has objected, I believe, that your—what you’re
                      attempting to do is define “consider” in a way that is not the
                      definition in statutory law, and—

       Defense:       I mean, if you can show me the law, Judge, I’d be happy to read it.
                      I just know I’m not aware of it. Now I’m just trying—

       The Court:     It would be the case that I believe that you were overturned on appeal.

       Defense:       The one that’s still pending in front of the court of criminal appeals
                      and probably going to come back the other way next month, that one?

       The Court:     Right now the law is that you must be able to consider the full range
                      of punishment, because the fact of the matter is you do not know what
                      you will—what you will find out once you hear the evidence. Okay?
                      You need to be able to consider the full range. If you cannot imagine
                      a circumstance where you could give three days, then you say no, I
                      cannot consider the full range of punishment.




       2
           See Standefer v. State, 59 S.W.3d 177 (Tex. Crim. App. 2001); Maddux v. State,
862 S.W.2d 590 (Tex. Crim. App. 1991), overruled by Standefer, 59 S.W.3d at 180-81 (“Because
Maddux was wrongly decided and produces inconsistency in our precedent, we overrule that
decision.”); Nunfio v. State, 808 S.W.2d 482 (Tex. Crim. App. 1991), overruled by Barajas v. State,
93 S.W.3d 36, 40 (Tex. Crim. App. 2002) (“We may overrule a prior case when the case was badly
reasoned or is unworkable. The holding in Nunfio meets both criteria, and therefore, we
overrule it.”).

                                                4
       Defense:       Well, I believe that was the first question I asked where I said some
                      people say they will never give three days, which is what they
                      objected to, which is what you sustained.

       The Court:     All right.

       Defense:       Now may I ask that question?

       The Court:     If you want to have each person answer that question, I have no
                      problem with that.

       Defense:       I think now we all understand the question, and I’m saying that I
                      —makes sense that some people would never, ever, ever give three
                      days in jail to someone they found guilty of DWI. And I want to
                      make sure that you understand that—

       State:         Again, I don’t think that’s the question that—

       The Court:     That’s not the question.

       Defense:       Then move to strike.


Defense counsel then went on to discuss a possible scenario that might lead a jury to assess the

maximum punishment, before saying:


       [B]ut that’s an easy case to establish people’s minds of the worst drunk driver ever,
       but for some people the least egregious set of facts that they can conceive of, even
       those, maybe a week, maybe ten days, but three days is just never going to be [an]
       adequate deterrent, adequate punishment, adequate reason for what we have
       punishment for, and that’s my question. Does it make sense, [panelist one]? I mean,
       tell me what you think—


The trial court again interrupted defense counsel.


       The Court:     It’s a yes or no. Look, first of all, you’re out of time. Second of all,
                      it’s a question, yes or no, can you consider the full range of
                      punishment, which on a Class B misdemeanor DWI is anywhere
                      between three and 180 days. If you can consider that, the answer is

                                                 5
                        yes. If you cannot consider it, then the answer is no. And we need to
                        know one way or the other. I believe [counsel for the State] asked
                        you this question and asked you to raise your hand.

        Defense:        Your Honor, I’m going to object to this, because it seems to me like
                        you’re—

        The Court:      [Counsel], you do not have the floor.

        Defense:        —trying to tell this jury what the answer you want them to give.

        The Court:      [Counsel], you do not have the floor.

        Defense:        I believe it’s my voir dire, Your Honor. I believe I can conduct voir
                        dire.

        The Court:      [Counsel], please have a seat.

        Defense:        Your Honor, I would like to conclude my voir dire. I would like to
                        identify jurors who I have had answers to questions which I believe
                        would lead to possible strikes for cause, and I need to—

        The Court:      So noted.


The trial court then again instructed defense counsel to have a seat and sent the jury out of the room.

                Outside the presence of the jury, the trial court gave defense counsel the opportunity

to make a proffer of the additional questions he wanted to ask the venire panel. Defense counsel first

requested a mistrial, based on the trial court’s statement that defense counsel had appealed and lost

on the question of how to define “consider.” After the trial court denied his request, defense counsel

stated that he wished to question venire panelists one, seven, and thirteen, as well as all the panelists

from the third and fourth rows, regarding their ability to consider giving the minimum three-day

sentence. The trial court granted his request as to panelists one, seven, and thirteen and asked

defense counsel, “So any other—anything else before we go over who else might need to come



                                                   6
before the Bench?” Rather than answering the trial court, defense counsel asked the State if it

wanted to question anyone on the first two rows. After the State made its request, the trial court

again asked defense counsel if he had anyone else to question on the first two rows, and he

responded “No.” The Court then asked both sides about the third row, and defense counsel said,

“No, I don’t have any others other than that.”

                During individual questioning at the bench, defense counsel asked panelists one,

seven, and thirteen whether they could “consider giving” the three-day minimum sentence. Panelists

one and seven said they could, panelist thirteen said, “I think that’s too low.” The trial court granted

Munoz’s motion to strike panelist thirteen for cause, and Munoz used peremptory strikes against

panelists one and seven. Munoz did not request any additional peremptory strikes nor express any

concern that he was not able to thoroughly voir dire any of the panelists selected to serve on the jury.


                                           DISCUSSION

Restrictions on Defense Voir Dire

                In his first and second points of error, Munoz contends that the trial court improperly

limited his ability to question the venire panel regarding the range of punishment.

                The voir dire process allows counsel to determine if any venire panelist is biased for

or against one of the parties or the relevant law and facilitates the intelligent use of peremptory

strikes. See Sanchez, 165 S.W.3d at 711. Therefore, the scope of a permissible voir dire

examination is necessarily broad to enable counsel to discover any potential bias or prejudice. Id.

At the same time, the trial court is given broad discretion to control the voir dire examination of

the venire and may impose reasonable restrictions on the questions asked and the length of the



                                                   7
voir dire examination. Ratliff v. State, 690 S.W.2d 597, 599 (Tex. Crim. App. 1985). “These

two principles—the right of counsel to question veniremembers and the right of the trial court to

control voir dire and impose reasonable restrictions—co-exist and must be harmonized.” Id.; see

also Morris v. State, 1 S.W.3d 336, 340 (Tex. App.—Austin 1999, no pet.).

               We review a trial court’s restrictions on jury voir dire for an abuse of discretion. See

Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002); Morris, 1 S.W.3d at 340. A trial court

abuses its discretion when it prohibits a proper question about a proper area of inquiry, see Barajas,

93 S.W.3d at 38, or when it arbitrarily limits the amount of time allowed for voir dire examination,

see Morris, 1 S.W.3d at 339.

               Munoz first argues that the trial court improperly prevented his counsel from asking

questions of the venire panel regarding their ability to consider the minimum punishment of

three days. Bias against the range of punishment is a proper area of inquiry during voir dire for both

challenges for cause and peremptory strikes. See Standefer v. State, 59 S.W.3d 177, 181 (Tex. Crim.

App. 2001) (“[A] prospective juror must be able to consider the full range of punishment provided

for an offense or be challengeable for cause.”). However, an otherwise proper question is

impermissible if it attempts to commit the venire panelist to a particular sentence based on particular

facts, see Barajas, 93 S.W.3d at 38; Standefer, 59 S.W.3d at 181, or is confusing or misleading, see

Howard v. State, 941 S.W.2d 102, 108 (Tex. Crim. App. 1996); Bolden v. State, 73 S.W.3d 428, 430

(Tex. App.—Houston [1st Dist.] 2002, no pet.). When the trial court sustains an objection to the

form of a question but does not restrict counsel from pursuing the underlying area of inquiry,

“counsel must rephrase the improperly phrased question or waive the voir dire restriction.” Bolden,




                                                  8
73 S.W.3d at 431 (citing Howard, 941 S.W.2d at 108; Trevino v. State, 815 S.W.2d 592, 601

(Tex. Crim. App. 1991)).

               Here the trial court did not restrict Munoz’s counsel from examining the venire panel

on their ability to consider the entire range of punishment. Rather, it simply ordered counsel to re-

phrase his question so as to avoid improperly committing the panelists to giving the three-day

minimum sentence under specific circumstances, see Standefer, 59 S.W.3d at 177 (question is

improper if it includes facts in addition to those necessary to establish challenge for cause), or

confusing the jury with a definition of “consider” not found in Texas statutory or case law, cf.

Lagrone v. State, 942 S.W.2d 602, 609 (Tex. Crim. App. 1997) (trial court does not abuse its

discretion by refusing to permit counsel to question veniremember regarding his definition of the

term “probability”); Wheatfall v. State, 882 S.W.2d 829, 835 (Tex. Crim. App. 1994) (trial court

does not abuse its discretion by refusing to permit counsel to question veniremember regarding his

definition of the term “deliberately”). Munoz’s counsel, rather than rephrasing the question,

continued to expound upon his understanding of the meaning of the word “consider.” When he

asked the panel about his definition, the only panel response was “I don’t understand the question.”

At that point, the trial court stepped in and accurately and succinctly explained the requirement to

the jury, saying, “You need to be able to consider the full range. If you cannot imagine a

circumstance where you could give three days, then you say no, I cannot consider the full range of

punishment.” Defense counsel then asked for permission to ask that question and was granted it.

But instead of asking that question, he launched into a hypothetical and then asked a panelist, “Does

that make sense? What do you think?” The trial court again stepped in to prevent what it perceived

to be an overly broad formulation of the question. See Smith v. State, 703 S.W.2d 641, 645

                                                 9
(Tex. Crim. App. 1985) (seeking panelists’ “thoughts” is improperly broad; it presents general topic

for discussion rather than seeking particular information).

               The record does not reveal any abuse of discretion by the trial court. See Duffey

v. State, 249 S.W.3d 507, 512 (Tex. App.—Waco 2007, pet. ref’d) (trial court does not abuse

discretion by excluding confusing and improperly phrased question). Rather, it shows that defense

counsel was given several opportunities to rephrase his improperly phrased questions and even

given approval for a specific form of the question, which he then failed to ask. Instead, defense

counsel used the rest of his allotted time to continue asking improper questions of the jury

regarding the definition of “consider.” Furthermore, defense counsel was later given another

opportunity to question individual panelists at the bench regarding their ability to consider the full

range of punishment.

               Even if the trial court’s rulings on Munoz’s discussion of the definition of “consider”

had been error, it was harmless. See Gonzales v. State, 994 S.W.2d 170, 171 (Tex. Crim. App. 1999)

(stating that trial court’s impermissible exclusion of proper question during voir dire is subject to

harmless-error analysis). The trial court provided the jury with an accurate explanation of the

requirement that the jury be able to consider the full range of punishment and allowed trial counsel

the opportunity to question individually the jurors about whom he expressed concerns. None of

these jurors ultimately served on the jury. Therefore, we are convinced beyond a reasonable doubt

that Munoz was not harmed by the trial court’s rulings on the form of the range of punishment

questions. Gonzales, 994 S.W.2d at 171 (right to pose proper questions during voir dire examination

is included within constitutional right to counsel); Howard, 941 S.W.2d at 108 (same); Tex. R. App.

P. 44.2(a) (court of appeals must reverse for constitutional error unless it determines beyond a

                                                 10
reasonable doubt that error did not contribute to conviction or punishment). We overrule Munoz’s

first point of error.

                Munoz next argues that the trial court improperly imposed a time limit on defense

counsel’s voir dire when it stopped him during his last attempt at questioning the panel regarding

the range of punishment. To determine whether the imposition of a time limit on voir dire was an

abuse of discretion, we ask: (1) whether defense counsel attempted to unnecessarily prolong the

voir dire; (2) whether the questions that he was not permitted to ask were proper voir dire questions;

and (3) whether the defendant has shown that any unexamined panelists actually served on the jury.

See Ratliff, 690 S.W.2d at 600; Wappler v. State, 183 S.W.3d 765, 773 (Tex. App.—Houston

[1st Dist.] 2005, pet. ref’d); Morris,1 S.W.3d at 340.

                Here, Munoz’s counsel was able to conduct a thorough voir dire on the panelists’

attitudes toward drinking alcoholic beverages, the accuracy of field sobriety tests, and the legal

definition of “impairment” before questioning them regarding the range of punishment. At the time

he was cut off, however, defense counsel was prolonging voir dire by continuing to expound on his

definition of “consider” despite the unfavorable ruling from the trial court and even after receiving

approval for a properly phrased question. It was the improperly phrased and confusing questions

regarding his definition that defense counsel was not permitted to ask. After the jury was sent out

of the room, defense counsel stated that his objection to being cut off was that there were certain

individual panelists—specifically panelists one, seven, and thirteen, and all those on the third and

fourth row—that he needed to question further in order to adequately represent Munoz. The

trial court then granted permission for defense counsel to question panelists one, seven, and thirteen

individually on their ability to consider the full range of punishment. Munoz did not make a proffer

                                                 11
of any other questions that counsel desired to ask the entire panel or any individual panelists.

Further, each of the three panelists defense counsel did question individually were eventually struck.

The record does not indicate that Munoz sought any additional peremptory strikes, nor does it

indicate that any of the unexamined panelists on the third or fourth row served on the six-person

jury.3 See Morris, 1 S.W.3d at 340 (to show abuse of discretion through imposition of voir dire time

limit, defendant must show that unexamined panelist actually served on jury); cf. Green v. State,

934 S.W.2d 92, 105 (Tex. Crim. App. 1996) (to preserve error for denial of valid challenge for

cause, appellant must show he used peremptory challenge on that juror, that all his peremptory

challenges were exhausted, that his request for additional strikes was denied, and that an

objectionable juror sat on jury). Therefore, we hold that the trial court did not abuse its discretion

in imposing a time limit on defense counsel’s voir dire examination. We overrule Munoz’s second

point of error.


Alleged Bias

                  In his third point of error, Munoz contends that the trial court “made improper and

inaccurate statements before the venire that exhibited a personal prejudice against appellant’s

counsel.” Munoz does not point to any particular statements or cite to the record, nor does he point

to any legal authority to explain how these unspecified statements demonstrate bias. See Tex. R.

App. P. 38.1(i) (appellants’ brief must contain appropriate citations to authorities and the record).


        3
            After accounting for absent panelists and the panelist who was struck for cause, the
trial court noted that only the first fifteen panelists were in the pool for peremptory strikes. Munoz
did not, at that time or any other time, express concern that there were any panelists from the third
or fourth row who were in the pool whom he needed to examine regarding their ability to consider
the full range of punishment.

                                                  12
               In the absence of clear proof to the contrary, we presume a trial judge is impartial and

unbiased. See Roman v. State, 145 S.W.3d 316, 319 (Tex. App.—Houston [14th Dist.] 2004,

pet. ref’d). To warrant reversal for bias, statements by the trial court must demonstrate bias “of such

a nature and to such an extent as to deny a defendant due process of law.”4 Wesbrook v. State,

29 S.W.3d 103, 121 (Tex. Crim. App. 2001).

               We have conducted a thorough review of the statements the trial court made before

the venire panel and see no statements that indicate bias. While the trial court ruled against Munoz

and asked him to rephrase his questions several times, “judicial rulings alone almost never constitute

a valid basis for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994); see

also Garcia v. State, 246 S.W.3d 121, 147 (Tex. App.—San Antonio 2007, pet. ref’d). Furthermore,

“expressions of impatience, dissatisfaction, annoyance, and even anger” do not constitute bias, and

“[a] judge’s ordinary efforts at courtroom administration—even a stern and short-tempered judge’s

ordinary efforts at courtroom administration—remain immune.” Liteky, 510 U.S. at 556; see also

Garcia, 246 S.W.3d at 147. Therefore, even the trial court’s statements that prompted Munoz’s

request for a mistrial—her remark that defense counsel had “been overturned” on appeal—and her




       4
          Munoz moved for a mistrial on the basis of the trial court’s statement that defense counsel
had been “overturned on appeal,” arguing that the statement “is factually incorrect, and even if it
were correct, I believe that is an improper statement to make in front of the jury in [this] case.”
However, he did not suggest at trial that the court’s comments were indicative of bias, nor did he
request that the judge recuse herself. So, to the extent Munoz argues that the trial court’s alleged
bias warranted recusal, he has not preserved error. See Owens v. State, 202 S.W.3d 276, 278
(Tex. App.—Amarillo 2006, no pet.); Harris v. State, 160 S.W.3d 621, 625 (Tex. App.—Waco
2005, no pet.). To the extent that Munoz argues that the trial court’s alleged bias warranted
disqualification, he must also show that the alleged bias stems from an extrajudicial source and
“provide facts sufficient to establish that a reasonable man, knowing all the circumstances involved,
would harbor doubts as to the judge’s impartiality.” Owens, 202 S.W.3d at 278.

                                                  13
instructions for counsel to sit down after he had reached his time limit do not support an inference

of bias. We overrule Munoz’s third point of error on appeal.


                                         CONCLUSION

               Having overruled all points of error on appeal, we affirm the judgment of conviction.



                                              __________________________________________

                                              Diane M. Henson, Justice

Before Chief Justice Jones, Justices Puryear and Henson

Affirmed

Filed: September 23, 2009

Do Not Publish




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