                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS

                                                   §
  CHRISTOPHER MICHAEL SANCHEZ,                                      No. 08-17-00244-CR
                                                   §
                          Appellant,                                    Appeal from
                                                   §
  v.                                                                243rd District Court
                                                   §
  THE STATE OF TEXAS,                                             of El Paso County, Texas
                                                   §
                          Appellee.                                 (TC # 20170D03473)
                                                   §

                                           OPINION

        The question in this appeal is whether the trial court abused its discretion in two voir dire

rulings. Specifically, Appellant Christopher Michael Sanchez complains that the trial court erred

in (1) restricting his ability to voir dire on the comparative burdens of proof in the judicial system,

and (2) preventing him from asking a question seeking a scaled response (i.e. answer “on a scale

of 1 to 5”). While as a general proposition both these inquiries might be proper, on the record

before us neither merit reversal. We therefore affirm the conviction below.

                                         BACKGROUND

       In the process of being arrested on an outstanding warrant, a booking officer noticed that

Appellant had a stab injury and directed officers take him to a local hospital. He did not want to

go and resisted the officers at almost every turn. When at the hospital, Appellant kicked one of
the police officers in the chest. The assault was evidenced by a photograph of the shoeprint on the

officer’s uniform and the officer’s testimony that the kick caused him pain. The grand jury indicted

Appellant for assault on a public servant. Appellant defended the claim in part based on the failure

of the State to appreciate that the assault might have been captured on the hospital’s video

surveillance system. Whatever video might have existed, however, was overwritten because it

was not requested in time. Through cross-examination, Appellant’s counsel also questioned how

Appellant who was lying prone on the floor could have kicked the police officer in the chest.

        A jury convicted Appellant of the offense. In the punishment phase of the trial, Appellant

plead true to two enhancement paragraphs detailing two prior felony convictions. The trial court

sentenced him to twelve-years’ incarceration.

                                       VOIR DIRE ISSUES

        Appellant brings two issues on appeal, both of which pertain to the voir dire. His first issue

complains of a limitation on his ability to contrast the different burdens of proof in the legal system.

His second issue contends that he should have been allowed to ask the venire to rate on a scale of

one to five whether it agreed or disagreed with the statement that it is better for ten people go free

than one be convicted. Appellant could ask if the venire agreed or disagreed with the statement,

he was simply not allowed to ask for the one to five rating.

                                        Standard of Review

        We review the trial court’s limitations on voir dire under the abuse of discretion standard.

See Barajas v. State, 93 S.W.3d 36, 38 (Tex.Crim.App. 2002). A trial court may impose

reasonable restrictions on exercising voir dire examination. Thompson v. State, 267 S.W.3d 514,

517 (Tex.App.--Austin 2008, pet. ref’d), citing Boyd v. State, 811 S.W.2d 105, 115

(Tex.Crim.App. 1991). Otherwise, “voir dire could go on forever without reasonable limits.”



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Barajas, 93 S.W.3d at 38. Nonetheless, a trial court abuses its discretion when it limits a proper

question concerning a proper area of inquiry.         Id.; Dinkins v. State, 894 S.W.2d 330, 345

(Tex.Crim.App. 1995).

       A proper area of inquiry includes discovery of a potential juror’s views on any issue

relevant to the case. Sells v. State, 121 S.W.3d 748, 756 (Tex.Crim.App. 2003); Barajas, 93

S.W.3d at 38. A question can be relevant if it seeks to uncover grounds for a challenge for cause.

Barajas, 93 S.W.3d at 39. A proper area of inquiry also includes those questions that assist a party

in intelligently exercising peremptory challenges. Id.; Dhillon v. State, 138 S.W.3d 583, 587

(Tex.App.--Houston [14th Dist.] 2004, pet. struck). But even if within a proper area of inquiry,

the question must be properly phrased. The trial court has “discretion to restrict voir dire questions

that are confusing, misleading, vague and broad, or are improper commitment questions.”

Hernandez v. State, 390 S.W.3d 310, 315 (Tex.Crim.App. 2012), citing Barajas, 93 S.W.3d at 38-

39; Sells, 121 S.W.3d at 755-56 (“In addition, a trial judge may prohibit as improper a voir dire

question that is so vague or broad in nature as to constitute a global fishing expedition.”).

       Even if we find error, we still must find harm before reversing a conviction. Our harm

analysis turns on the nature of the claim being asserted. Jacobs v. State, 560 S.W.3d 205

(Tex.Crim.App. 2018). If a defendant claims the voir dire restriction violates a constitutional

requirement, then the harm analysis follows TEX.R.APP.P. 44.2(a)(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”). Any other error in

restricting voir dire implicates Rule 44.2(b)(“Any other error, defect, irregularity, or variance that

does not affect substantial rights must be disregarded.”).




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       Either below, or now on appeal, Appellant does not claim the limitations on his voir dire

implicate a constitutional protection. Accordingly, we apply the Rule 44.2(b) harm standard. See

Easley v. State, 424 S.W.3d 535, 542 (Tex.Crim.App. 2014)(similarly finding restriction on

comparing burdens of proof was judged under non-constitutional error standard).

                                   Relative Burdens of Proof

       The State’s prosecutor acknowledged to the jury that Appellant enjoyed the presumption

of innocence and that the State was required to prove its case beyond a reasonable doubt. When

it came his turn, Appellant’s counsel also discussed the burden of proof. As many criminal defense

attorneys do, he sought to contrast the criminal burden of beyond a reasonable doubt with other

burdens of proof in the judicial system:

       [APPELLANT’S COUNSEL]: Okay. Okay. We’re going to talk about standards
       of proof for a little bit here. Now, before we -- before we get to these, there are
       other standards of proof that are around law enforcement. There’s concepts like
       probable cause, reasonable suspicion. These are -- these are all standards of proof
       that fail to actually win any case. Okay. You need -- to win any case at all, you
       need to have at least proof by preponderance of the evidence, the majority of the
       credible evidence. Does anybody have a problem with the fact that maybe probable
       cause isn’t going to win the day for any defendant?
       [STATE’S ATTORNEY]: Judge, I’m going to object to that as an attempt to
       contract with this jury.
       THE COURT: Sustained.
       [APPELLANT’S COUNSEL]: All right. We’ll go on to the standards of proof
       that actually apply to the cases at the end here. The first one’s preponderance of
       the evidence. It’s -- like I said, it’s sometimes considered 51 percent of the
       evidence. It’s just basically advancing the football past the 50 yard line. You do
       that, you win a civil case. That’s because a civil case is for money usually. Okay.
       Clear and convincing evidence, that’s -- there are several applications of that. The
       most common one is when the State of Texas is trying to remove your -- well, the
       children from the parent. They have to prove abuse and neglect by clear and
       convincing evidence before they allow the State of Texas to remove that child from
       a family. Now, I don’t have really a football analogy, except it will be a lot past
       the 50 yard line, maybe a field goal. But, you know, it’s clear and convincing
       evidence. It’s evidence that gives you a firm conviction of the -- of what you’re


                                                4
       trying to prove. And then beyond a reasonable doubt, that’s the highest standard
       of proof.
       [STATE’S ATTORNEY]: Judge, I’m going to object to that as a misstatement of
       the law. Beyond a reasonable doubt is not defined, and --
       THE COURT: Sustained.
       [APPELLANT’S COUNSEL]: Very well. Anyway, in a criminal case, you’re
       going to have to find the evidence for every element beyond a reasonable doubt.
       From this exchange, Appellant contends the trial court erred in disallowing a discussion of

the contrasting burdens of proof. No doubt, a defendant has the right to explore the venire’s

understanding of the term reasonable doubt by contrasting it with other burdens of proof. Fuller

v. State, 363 S.W.3d 583, 587 (Tex.Crim.App. 2012)(“And it strikes us as particularly apt to

inquire whether a prospective juror understands that proof beyond a reasonable doubt must at least

constitute a more onerous standard of proof than preponderance of the evidence and clear and

convincing evidence.”). [Emphasis in original].

       The State concedes as much on appeal but contends that the way Appellant asked the

question was improper because his inquiry focused on the quantity of the evidence produced, and

not the quality of that evidence. The State then relies on the proposition that if a trial court merely

limits a question due to its form, counsel must determine the basis of the limitation and attempt to

fashion a question which complies with the trial court’s concerns. See Wright v. State, 28 S.W.3d

526, 534 (Tex.Crim.App. 2000)(“Although appellant is authorized to ask proper questions in a

particular area of inquiry, he is not entitled to ask questions in any particular form. Because

appellant did not follow through on this topic, we cannot say that the trial court improperly

restricted his voir dire of this venire member.”); Howard v. State, 941 S.W.2d 102, 110-11

(Tex.Crim.App. 1996), overruled in part on other grounds by Easley v. State, 424 S.W.3d 535

(Tex.Crim.App. 2014)(where there is no absolute limitation placed on the underlying substance of

a defendant’s voir dire question, it is incumbent upon defense counsel to rephrase the improperly
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phrased query or waive the voir dire restriction); Moncada v. State, 960 S.W.2d 734, 737

(Tex.App.--El Paso 1997, pet. ref’d)(where no absolute limitation is placed on underlying

substance of defendant’s voir dire question, defense counsel must rephrase the improperly phrased

question or waive the voir dire restriction). From this line of cases, the State claims either that

Appellant has forfeited the claim, or that the trial court did not abuse its discretion in granting the

State’s objection. We agree, but for a slightly different reason.

       After explaining preponderance-of-the-evidence and clear-and-convincing evidentiary

burdens, Appellant’s counsel made the statement “[a]nd then beyond a reasonable doubt, that’s the

highest standard of proof.” The prosecutor objected that the statement was “a misstatement of the

law.” The prosecutor was in the process of either refining that objection or making another

objection when the trial court interrupted and sustained the objection (Prosecutor: “Beyond a

reasonable doubt is not defined and --” Trial Court: “Sustained”). We conclude that the first stated

ground for the objection--a misstatement of law--was technically correct. Reasonable doubt is not

the “highest standard of proof.” Technically, “beyond all doubt” would be a higher standard. It

is not a standard used in our system, but as Fuller points out, it is a standard that the State often

uses as a contrasting standard when it explains reasonable doubt. Fuller, 363 S.W.3d at 587 (“It

is but the flip side of the inquiry that prosecutors engage in routinely during voir dire, designed to

test whether prospective jurors will hold the State to the inappropriately onerous standard of proof

beyond all doubt.”). [Emphasis in original]. And the actual charge here contained an explicit

reference to a higher burden of proof: “[The State] is not required that the prosecution prove guilt

beyond all doubt; it is required that the prosecution’s proof excludes all reasonable doubt

concerning the Defendant’s guilt.” Thus the trial court may have sustained the objection because

Appellant counsel’s statement was not precise enough to be true. Beyond a reasonable doubt is



                                                  6
the highest standard that we ask a fact-finder to use, but it is not the “highest standard of proof.”

Given that distinction, Appellant would have been required to either rephrase the statement, or at

least approach the bench to understand the rationale of the trial court’s ruling and what actual

limitation was placed on his voir dire. We think this particularly true given that the trial court had

already allowed counsel to contrast other burdens of proof, including preponderance of the

evidence and clear and convincing evidence.

       Accordingly, we hold that the trial court did not abuse its discretion in sustaining the

objection to the single statement of which Appellant complains. Because Appellant has failed to

show the trial court would have disallowed a robust discussion of the contrasting burdens of proof

through precisely worded statements to the venire, we overrule Issue One.

                             Scaled Question on Blackstone’s Ratio

       Appellant’s second issue claims that trial court erred in preventing him from asking

questions seeking a scaled response. Appellant’s counsel announced his intention to ask the jury

to agree or disagree “with the following statements” on a scale of one to five. The trial court

quickly interrupted and at a bench conference informed counsel that it considered numerical scaled

responses improper contracting questions. Appellant’s counsel acknowledged the court’s position,

but stated the questions were for the intelligent exercise of preemptory strikes. Defense counsel

then went on to more simply ask if the venire, one by one, agreed or disagreed with the proposition

that “Is it better to let ten guilty go free rather than convict a single innocent person?” Most of the

venire disagreed with the statement, a few agreed, and several more declined to answer the

question or said they did not know.

       On appeal, Appellant argues that the question merely seeks a prospective juror’s general

philosophical outlook on the justice system and is not a commitment question. “Commitment



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questions are those that commit a prospective juror to resolve, or to refrain from resolving, an issue

a certain way after learning a particular fact.”               Standefer v. State, 59 S.W.3d 177, 179

(Tex.Crim.App. 2001). One example might be a hypothetical question, based on the facts of the

case that the jury will hear, to gain a venireperson’s commitment to vote one way or another.

Atkins v. State, 951 S.W.2d 787, 789 (Tex.Crim.App. 1997). While it might be possible to ask an

improper commitment question using scaled responses, we agree with Appellant that the question

he asked was not a commitment question.

        Moreover, scaled response questions are not per se improper. We have opined that the

State in an intoxication manslaughter case could ask the venire members to rate the seriousness of

intoxication manslaughter on a scale of one to ten with one being “it’s not important” and ten being

“it’s real important.” Cardona v. State, 08-07-00161-CR, 2009 WL 3153207, at *3 (Tex.App.--

El Paso Sept. 30, 2009, no pet.)(not designated for publication)(“By asking the potential jurors to

rate how seriously they viewed the offense of intoxication manslaughter, the prosecutor was

attempting to determine their views and to expose any biases.”). That holding does not command

that the opposite is always true--that a trial court abuses its discretion in denying the use of such a

sliding scale question. But even assuming an abuse of discretion in denying the question, we

conclude there was no harmful error here. Appellant was ultimately able to ask if the venire agreed

or disagreed with the proposition. He was only precluded from eliciting a scaled response to this

one question.1 The lack of harm is particularly true given the actual question itself.

        Appellant asked the jury to agree or disagree with “Blackstone’s Ratio”- “[I]t is better that

ten guilty persons escape than that one innocent suffer.” See Coffin v. U.S., 156 U.S. 432, 456

(1895), quoting Blackstone from 2 Bl. Comm. c. 27, marg. p. 358. The proposition has been cited


1
  The record suggests that Appellant desired to pose a scaled response question to other inquires, but they are not
identified in our record.

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as support for the presumption of innocence. Coffin, 156 U.S. at 456 (collecting several historical

references to the presumption of innocence, including Blackstone’s ratio). It also been used,

however, as a proxy to estimate a quantitative measure for the meaning of reasonable doubt.

Michael L. DeKay, The Difference Between Blackstone-Like Error Ratios and Probabilistic

Standards of Proof, 21 L. & Soc. Inquiry 95, 95-96 (1996)(suggesting that ten to one ratio equates

to a 91% probability for reasonable doubt).

       Given the ambiguity of the phrase’s ultimate meaning, we decline to find harm in not

allowing counsel to determine the degree to which the venire agreed or disagreed with it. For

instance, a venireperson might have disagreed with the statement simply because they reject the

proposition that the justice system should accept either alternative--allowing any innocent person

to be convicted, or any guilty person being set free. Or given that Blackstone sets a ratio, a

venireperson might simply disagree with the stated ratio. Another English jurist advanced a

different ratio--five to one--many years before Blackstone. Coffin, 156 U.S. at 456, quoting Lord

Hale from 1678 as stating, “[I]t is better five guilty persons should escape unpunished than one

innocent person should die.” Earlier still, a French writer advocated a twenty to one ratio. DeKay,

21 L. & Soc. Inquiry at 95-96), quoting twenty to one ratio suggested by John Fortescue in 1616.

Agreeing or disagreeing with the proposition, whether strongly or not, might simply be a

disagreement based on the math. Finally, a venireperson might disagree with the statement without

relating it either to the presumption of innocence, or the nature of reasonable doubt, or any other

concept in the court’s charge. Counsel would need to delve into a venireperson’s thought process,

and no follow-up questions were asked here. We thus cannot tell how helpful or not the answer to

the question would be in exercising peremptory strikes. Consequently, we cannot determine how

helpful or not a scaled response to the same question would be.



                                                9
       Our harmful error analysis considers “everything in the record” including the evidence

admitted at trial, the charge, the parties’ theories of the case, closing argument, and whether the

State emphasized the error. Easley, 424 S.W.3d at 542. This was not a particularly close case.

Three officers testified to Appellant’s confrontational demeanor that evening. Only one officer,

the victim, witnessed the assault, but his testimony was supported by a photograph of Appellant’s

shoeprint on the officer’s uniformed shirt. Appellant primarily urged through cross examination

that it would improbable that while he was laying prone on the floor, he could have kicked the

officer who was standing in front of him. The jury, however, had photographs of the scene and

saw both the officer and Appellant; they could much better understand the physics of the assault

that we can from a written record. Appellant’s argument about the missing video would be relevant

only to the extent the State knew the area was being filmed, and that the video would be overwritten

in a certain time period. Neither of those predicates were shown. Considering the entire record,

we find any error in disallowing the single voir dire question at issue did not affect his substantial

rights. Cf. Easley, 424 S.W.3d at 542 (finding no harmful error for restriction on counsel’s

preferred method of describing reasonable doubt when he could approach question in a different

way). We overrule Issue Two.

       Having overruled all of Appellant’s issues, we affirm the conviction below.


February 26, 2019
                                       ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Palafox, JJ.

(Do Not Publish)




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