                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-11-00266-CR
                               No. 10-11-00267-CR

JOSE MARIA GARCIA,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee



                        From the 19th District Court
                         McLennan County, Texas
               Trial Court Nos. 2011-1345-C1 and 2011-360-C1


                         MEMORANDUM OPINION


      In Cause No. 10-11-00266-CR, the jury convicted Jose Maria Garcia of the offense

of attempted capital murder and assessed his punishment at confinement for life. In

Cause No. 10-11-00267-CR, Garcia entered a plea of guilty to the offense of aggravated

robbery. The trial court assessed punishment at confinement for life and ordered the

sentence to run consecutively to Cause No. 10-11-00266-CR. We affirm.
                                    Background Facts

        Garcia does not challenge the sufficiency of the evidence to support his

convictions.      Deputy Louis Lourcey, Jr., with the Falls County Sheriff’s Office,

attempted to initiate a traffic stop on Garcia’s vehicle traveling on Interstate 35. Deputy

Lourcey activated his overhead lights, and Garcia accelerated.           Deputy Lourcey

pursued Garcia for over a mile before Garcia pulled onto the shoulder of the interstate.

Deputy Lourcey was notifying dispatch of the stop when he saw Garcia exit his vehicle.

Garcia approached Deputy Lourcey’s vehicle, raised his weapon, and fired shots at the

deputy. The shots hit the windshield of the patrol vehicle. Garcia returned to his

vehicle and left the scene, and Deputy Lourcey pursued him.

        Garcia exited the interstate and entered a residential area.     Deputy Lourcey

positioned himself at an intersection where he was likely to encounter Garcia. As

Garcia rounded the corner, Deputy Lourcey fired a shot and hit Garcia’s windshield.

Garcia continued driving and struck Deputy Lourcey’s patrol car with his vehicle.

Deputy Lourcey was behind the door of the patrol car for protection, and after impact,

he was pinned between the door and the vehicle. Garcia left the scene again, and

Deputy Lourcey was no longer able to continue the pursuit.

        Garcia abandoned his vehicle near a baseball field and began walking to the

interstate. Garcia went to a convenience store where he pointed a gun at a man and

demanded the man’s car keys. When the man refused, Garcia shot him five times.




Garcia v. State                                                                      Page 2
                                 Cause No. 10-11-00266-CR

Voir Dire

        In his first issue, Garcia argues that the trial court abused its discretion in

prohibiting him from comparing different standards of proof in voir dire. In the second

issue, Garcia contends that the trial court erred in instructing the jury panel on the

reasonable doubt standard of proof. Garcia filed a written objection to the trial court’s

limitation of voir dire questions. The written objection requested that Garcia be allowed

to question the jury panel on the “lower limits” of proof beyond a reasonable doubt to

make certain there is no misunderstanding that the criminal burden of proof is the

highest burden. Prior to voir dire, the trial court held a hearing on Garcia’s written

objections. The trial court overruled the objection and stated:

        I’ll state on the record again, once again, why I do not allow comparison
        of the standard of proof in a criminal case, proof beyond a reasonable
        doubt, with standards of proof in civil cases, either preponderance of the
        evidence or clear and convincing evidence. Since there is no statutory
        definition of proof beyond a reasonable doubt that is required, I think it’s
        misleading and confusing to the jury panel to try to quantify the amount
        of evidence that applies in a civil case to that in a criminal case. In a civil
        case there are legal definitions of preponderance of the evidence and clear
        and convincing evidence, but even there, there is no way to quantify how
        much evidence is necessary. … You don’t define - - you don’t determine
        reasonable doubt - - beyond a reasonable doubt by the quantity of
        evidence that is produced.

        During voir dire, the trial court instructed the jury panel:

        There is no legal definition of what proof beyond a reasonable doubt is.
        It’s left up to each individual juror in their own mind to determine if and
        when that standard has been met. …It’s a very illusory concept. But we
        leave it up to each individual juror to determine for themselves if and
        when that standard has been met.


Garcia v. State                                                                           Page 3
        The trial court has broad discretion over the process of selecting a jury. Sells v.

State, 121 S.W.3d 748, 755 (Tex. Crim. App. 2003). We leave to the trial court's discretion

the propriety of a particular question and will not disturb the trial court's decision

absent an abuse of discretion. Id.

        Garcia was tried in July 2011, and in March 2012, the Court of Criminal Appeals

decided Fuller v. State, 363 S.W.3d 583 (Tex. Crim. App. 2012). In Fuller, the Court stated

the jury's ability to apply the correct standard of proof remains an issue in every

criminal case. Fuller v. State, 363 S.W.3d at 587. The Court held that inquiry into

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 is permissible. Id. The Court further found that it is

appropriate to explain the contrast among the various standards of proof. Fuller v. State,

363 S.W.3d at 588. Therefore, the trial court erred in not allowing Garcia to question the

jury panel on the differences between the criminal and civil burdens of proof and in

instructing the jury on the standard of reasonable doubt.

        The trial court’s error in not allowing Garcia to question the jury on the burden

of proof is subject to harm analysis. Fuller v. State, 363 S.W.3d at 589. Garcia argues that

the error is of a constitutional magnitude and should be analyzed under TEX. R. APP. P.

44.2(a).




Garcia v. State                                                                       Page 4
        In Anderson v. State, a case that originated in the same trial court as the case

before us, the Amarillo Court of Appeals1 considered the same issue in which the trial

court did not allow defense counsel to compare the burden of proof required in a

criminal case with the burden of proof required in a civil case during voir dire.

Anderson v. State, 341 S.W.3d 585 (Tex. App.—Amarillo 2011), vacated, 366 S.W.3d 198

(Tex. Crim. App. 2012). The Amarillo Court initially found that the trial court did not

abuse its discretion in denying defense counsel's request to ask questions during voir

dire about the different civil standards of proof while questioning the venire panel in a

criminal case. Anderson v. State, 341 S.W.3d at 588. On review, the Court of Criminal

Appeals vacated the judgment of the Court of Appeals and remanded for

reconsideration in light of Fuller. Anderson v. State, 366 S.W.3d 198, 199(Tex. Crim. App.

2012). On remand, the Amarillo Court found that the denial of appropriate questioning

during voir dire constitutes nonconstitutional error that is subject to harm analysis

under TEX. R. APP. P. 44.2 (b). Anderson v. State, No. 07-10—0139-CR, 2012 Tex. App.

Lexis 6232, (Tex. App.—Amarillo July 30, 2012, pet. den’d)(mem. op., not designated for

publication).     The Court of Criminal Appeals denied the petition for discretionary

review. In re Anderson, 2012 Tex. Crim. App. LEXIS 1374 (Tex. Crim. App., Oct. 24,

2012). We follow the court in Anderson and find that error in denying appropriate

questions during voir dire is subject to nonconstitutional harm analysis under TEX. R.

APP. P. 44.2 (b).



1 The case was transferred on appeal from the 10 th Court of Appeals in Waco to the 7 th Court of Appeals
in Amarillo.

Garcia v. State                                                                                   Page 5
        A reviewing court should disregard any "error, defect, irregularity, or variance

that does not affect substantial rights" of the appellant. TEX. R. APP. P. 44.2 (b). A

substantial right is affected "when the error has a substantial and injurious effect or

influence in determining the jury's verdict."     Rich v. State, 160 S.W.3d at 577. In

conducting the harm analysis, we consider everything in the record, including any

testimony or physical evidence admitted for the jury's consideration, the nature of the

evidence supporting the verdict, the character of the alleged error and how it might be

considered in connection with other evidence in the case, the jury instructions, the

State's theory and any defensive theories, closing arguments, voir dire, and whether the

State emphasized the error. Id.

         During voir dire, the trial court instructed the jury panel that at all times the

State has the burden of proof, that the State has to produce evidence, and that the

defendant does not have to produce evidence because he is presumed innocent. The

trial court thoroughly discussed the beyond a reasonable doubt standard of proof. The

error in denying the questions comparing the standards of proof did not shift the

burden to the defense or lessen the State’s obligation to prove its case beyond a

reasonable doubt. See Anderson v. State, No. 07-10—139-CR, 2012 Tex. App. Lexis 6232,

(Tex. App.─Amarillo July 30, 2012, pet. den’d)(mem. op., not designated for

publication).




Garcia v. State                                                                     Page 6
          Trial counsel was permitted to ask the jury panel what comes to mind when

hearing the State has to prove the case beyond a reasonable doubt. Trial counsel also

asked potential jurors what reasonable doubt means to them.

          Garcia admitted to pointing the gun at Deputy Lourcey and firing the weapon.

Garcia’s defensive theory was that he did not intend to kill Deputy Lourcey when he

fired at his vehicle. Garcia does not challenge the sufficiency of the evidence to support

his conviction. See Anderson v. State at *8.

          The charge instructed the jury that the State has the burden of proof and must

prove each element of the charged offense beyond a reasonable doubt. There is nothing

in the record to indicate that the State emphasized the error.

          At the time of trial, the trial court did not have the benefit of the decision in Fuller

and improperly limited Garcia’s voir dire; however, the jury was properly and clearly

instructed that the State had the burden of proving guilt beyond a reasonable doubt.

See Anderson v. State at *9. We find that the trial court’s improper limiting of voir dire

did not have a substantial and injurious effect or influence on the jury’s verdict. See

TEX. R. APP. P. 44.2 (b); Anderson v. State at *10. We overrule Garcia’s first and second

issues.

          In the third issue, Garcia complains that the trial court allowed the State to ask an

improper commitment question during voir dire. A commitment question is a question

that commits a prospective juror to resolve or to refrain from resolving an issue a

certain way after learning of a particular fact. Davis v. State, 349 S.W.3d 517, 518 (Tex.

Crim. App. 2011). Commitment questions are impermissible unless the law requires a

Garcia v. State                                                                            Page 7
commitment. Id. Often, such questions ask for a "yes" or "no" answer, in which one or

both of the possible answers commits the jury to resolving an issue a certain way.

Standefer v. State, 59 S.W.3d 177, 179 (Tex. Crim. App. 2001).

        In determining whether a voir dire question is an improper commitment

question we must determine: (1) whether the particular question is a commitment

question, (2) if the question is a commitment question, does the question give rise to a

valid challenge for cause, and (3) if the question does give rise to a valid challenge for

cause, does the question contain only those facts necessary to test whether a prospective

juror is challengeable for cause. Standefer v. State, 59 S.W.3d at 179-182.

        During voir dire, the State was discussing “intent to kill” with the jury panel.

The State asked, “The moment I held up a pistol or a weapon and pointed it at him and

pulled the trigger, did I have the intent to kill him?” Garcia’s objection was overruled.

The State went on to discuss when and how intent is formed and explained that in

Texas there is not a “premeditation statute.” Viewed in context, the question did not

seek a commitment in that the prospective jurors were not being asked to commit

themselves to resolving an issue a certain way.

        Moreover, any error in allowing the question did not have a substantial and

injurious effect or influence on the jury’s verdict. See TEX. R. APP. P. 44.2 (b). Only one

potential juror answered the question, and the record does not show that juror was

seated on the jury. Later during voir dire Garcia’s counsel discussed instances where a

person could point a weapon without having intent to kill. We overrule the third issue.

Expert Testimony

Garcia v. State                                                                      Page 8
        In the fourth issue, Garcia argues that the trial court erred in excluding relevant,

reliable, and admissible expert testimony. Garcia sought to admit the testimony of

psychologist Dr. William Lee Carter that Garcia did not have the intent to cause the

death of Deputy Lourcey.

         We review a trial court's ruling on the admissibility of expert testimony for an

abuse of discretion. Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009). We will

uphold the trial court's decision unless it lies outside the zone of reasonable

disagreement. Layton v. State, 280 S.W.3d at 240.

        Garcia argues that the trial court’s decision to exclude the expert testimony of Dr.

Carter is in direct contravention of the opinion in Ruffin v. State, 270 S.W.3d 586 (Tex.

Crim. App. 2008). In Ruffin, the court found that the defendant's right to present a

defense generally includes the due-process right to the admission of competent,

reliable, exculpatory evidence to rebut the mens rea element of the offense. Ruffin v.

State, 270 S.W.3d at 594. The Court held that “relevant evidence may be presented

which the jury may consider to negate the mens rea element. And this evidence may

sometimes include evidence of a defendant's history of mental illness." Ruffin v. State,

270 S.W.3d at 596 (quoting Jackson v. State, 160 S.W.3d 568, 574 (Tex. Crim. App. 2005).

        Dr. Carter testified outside the presence of the jury during Garcia’s bill of

exceptions. He stated that he would testify that Garcia had the mental capacity to form

intent and that Garcia was not suffering from delusions where he believed he was not

actually shooting at a police officer. Dr. Carter further stated that Garcia “knew or

should have known that what he was doing could result in some serious harm or

Garcia v. State                                                                       Page 9
damage to people or property … [Garcia] had sufficient awareness to know that by

shooting at or shooting specifically towards somebody could hurt or even kill them.”

Dr. Carter testified that he did not believe Garcia wanted to kill anybody or wanted to

seriously harm anybody. Dr. Carter further testified, “I think [Garcia] had the capacity

to formulate intent. I do not think that he intended to kill anybody.”

        In Ruffin, the defendant suffered from severe delusions and believed that he was

shooting at Muslims, not police officers.       Ruffin was charged with intentionally

shooting at police officers, and he offered testimony to negate that element of the

offense. The Court in Ruffin found that he was entitled to present evidence of his

mental illness to negate the mens rea element of the offense.

        Garcia was not suffering from delusions or mental illness that negated an

element of the crime. Dr. Carter’s testimony would have been that Garcia was capable

of forming intent. Garcia also testified that he intended to shoot at Deputy Lourcey’s

vehicle. Evidence may also be excluded if it does not truly negate the required mens rea.

Ruffin v. State, 270 S.W.3d at 596. Dr. Carter’s testimony did not truly negate the

element of mens rea, rather it was his opinion that Garcia did not want to harm anyone.

We overrule the fourth issue.

                                Cause No. 10-11-00267-CR

        In his sole issue on appeal in Cause No. 10-11-00267-CR, Garcia argues that the

State engaged in vindictive prosecution by offering a plea bargain and then

subsequently withdrawing the offer. Garcia was indicted in Cause No. 10-11-00266-CR

for the offense of attempted capital murder and in Cause No. 10-11-00267-CR for the

Garcia v. State                                                                   Page 10
offense of aggravated robbery. The State offered Garcia a sentence of 50 years for each

case to run consecutively in exchange for a plea of guilty in both cases. Garcia wanted a

jury trial for the attempted capital murder case, but wished to accept the plea offer for

the aggravated robbery case. Because Garcia did not agree to the terms of the State’s

plea offer, the State withdrew the offer. Garcia went to trial on the attempted capital

murder charge. The jury convicted him and assessed his punishment at confinement

for life. Garcia entered a plea of guilty to the offense of aggravated robbery. The trial

court convicted him of the offense and assessed his punishment at confinement for life

with the sentence to run consecutively to the life sentence for attempted capital murder.

        Garcia argues that by withdrawing the plea offer for both cases the State forced

him to forego the plea agreement in Cause No. 10-11-00267-CR in order exercise his

right to a jury trial in Cause No. 10-11-00266-CR. Garcia contends that the State’s

actions constituted vindictive prosecution and violated his right to due process.

        Prosecutors have broad discretion in deciding which cases to prosecute. Neal v.

State, 150 S.W.3d 169, 173 (Tex. Crim. App. 2004). Courts must presume that a criminal

prosecution is undertaken in good faith and in nondiscriminatory fashion to fulfill the

State's duty to bring violators to justice. Id. A decision to prosecute violates due

process when criminal charges are brought in retaliation for the defendant's exercise of

his legal rights. Id. Under specific, limited circumstances, the presumption that a

prosecution is undertaken in good faith gives way to either a rebuttable presumption of

prosecutorial vindictiveness or proof of actual vindictiveness. Id.



Garcia v. State                                                                     Page 11
        A defendant establishes a claim for vindictive prosecution by offering either: (1)

proof of circumstances that pose a realistic likelihood of such misconduct sufficient to

raise a presumption of prosecutorial vindictiveness, which the State must rebut or face

dismissal of the charges; or (2) proof of actual vindictiveness, that is, direct evidence

that the prosecutor's charging decision is an unjustifiable penalty resulting solely from

the defendant's exercise of a protected legal right. Neal v. State, 150 S.W.3d at 173.

        Garcia was indicted at the time of the plea negotiations. The State did not bring

additional charges in retaliation for Garcia exercising his right to a trial by jury.

Although it is a due process violation to punish a person because he has done what the

law allows him to do, in the process of plea bargaining, there is no element of

punishment or retaliation so long as the accused is free to accept or reject the

prosecution’s offer. Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978). We do not find that

the State engaged in vindictive prosecution. We overrule Garcia’s sole issue in Cause

No. 10-11-00267-CR.

                                        Conclusion

        We affirm the trial court’s judgments.



                                          AL SCOGGINS
                                          Justice




Garcia v. State                                                                          Page 12
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed November 15, 2012
Do not publish
[CRPM]




Garcia v. State                                 Page 13
