      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-13-00600-CR



                                    Jerry Villarreal, Appellant

                                                  v.

                                   The State of Texas, Appellee


      FROM THE DISTRICT COURT OF HAYS COUNTY, 207TH JUDICIAL DISTRICT
         NO. CR-12-0514, HONORABLE JACK H. ROBISON, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury convicted appellant Jerry Villarreal of Assault Family Violence Repeat

Offender. Punishment, enhanced by two prior felony convictions, was assessed at life in prison. On

appeal, appellant asserts that the trial court erred in sustaining the State’s objection to a voir dire

question posed by defense counsel regarding the criminal standard of proof beyond a reasonable

doubt, thereby denying him his constitutional right to be heard in violation of Article 1, Section 10

of the Texas Constitution. We will affirm.


                      FACTUAL AND PROCEDURAL BACKGROUND

               During voir dire, the judge presiding over appellant’s trial sustained the State’s

objection of “improper commitment” to a question regarding reasonable doubt posed by defense

counsel to an individual veniremember. After another sustained objection to a similar iteration of

the question, defense counsel proceeded to ask the entire panel of veniremembers row by row if they
could not follow the criminal standard of proof beyond a reasonable doubt as it had been explained

to them. No objection was made to this formulation of the question. One of the veniremembers

responded by stating that she would not be able to follow the proof-beyond-a-reasonable-doubt

standard and was thereafter stricken for cause. At the conclusion of voir dire, following peremptory

strikes and strikes for cause, no additional veniremembers remained beyond those needed to seat

the jury.


                                             DISCUSSION

Commitment-Question Analysis

                Article 1, Section 10 of the Texas Constitution mandates that “in all criminal

prosecutions the accused shall . . . have the right of being heard by himself, or counsel, or both . . . .”

Tex. Const. art. 1, § 10. The right to be heard encompasses the right of defense counsel to question

prospective jurors in order to intelligently and effectively exercise peremptory challenges and

challenges for cause. Rich v. State, 160 S.W.3d 575, 580 (Tex. Crim. App. 2005). Alleged

commitment questions posed to veniremembers during voir dire, however, are subject to a two-step

analysis to determine their propriety: “(1) is the question a commitment question, and (2) did the

question include facts—and only those facts—that lead to a valid challenge for cause?” Standefer

v. State, 59 S.W.3d 177, 182 (Tex. Crim. App. 2001). As to the first step in the analysis, a

commitment question is one that binds or commits a prospective juror to a verdict or asks a

prospective juror to refrain from resolving an issue, based on a hypothetical set of facts. See id. at

179. Commitment questions are proper when the law requires jurors to make a certain type of

commitment and their inability to do so would result in a challenge for cause. See id. at 181. For

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example, a question that commits a juror or jurors to considering the full range of punishment for

a particular offense is proper because jurors are legally obligated to do so already. See id.

Commitment questions are improper and should be prohibited, however, when the law does not

require the proposed commitment. Id. A commitment question as to whether a prospective juror

considers a certain type of evidence to be mitigating, for example, is improper because the answer

to such a question would not give rise to a challenge for cause. See id.

               As to the second step in the commitment-question analysis, it is improper voir dire to

seek to commit a prospective juror to the facts of the case at hand. Atkins v. State, 951 S.W.2d 787,

790 (Tex. Crim. App. 1997). Therefore, even if a question does give rise to a challenge for cause,

“the question may nevertheless be improper if it includes facts in addition to those necessary to

establish a challenge for cause.” Standefer, 59 S.W.3d at 182. In Standefer, the commitment

question posed asked jurors whether they would convict a person arrested while possessing a crack

pipe containing a residual amount of cocaine in his pocket. Id. While “the state could have

permissibly questioned the prospective jurors about their ability to follow a law that holds a person

guilty of possession even though the possession involves only a residue amount of the drug in

question,” the question actually posed was improper because it directly tracked the facts of the case

at hand and included facts beyond those necessary to assess whether a prospective juror could be

challenged for cause. Id.

               In the instant case, defense counsel posed the following question to an individual

veniremember: “On a scale of one to seven, do you agree with the statement that I would not require

the State to prove its case beyond a reasonable doubt?” The State objected to this as an improper



                                                 3
commitment question, and the court sustained the objection. While we recognize that this is a

somewhat difficult question to decipher, we conclude that it is not a commitment question at all

because it is not based on a hypothetical set of facts and does not require the veniremember to

commit to a decision after learning a particular fact. Accordingly, it was an abuse of discretion for

the trial court to sustain the State’s objection on that basis. See Hernandez v. State, 390 S.W.3d 310,

315 (Tex. Crim. App. 2012), cert. denied, 134 S. Ct. 823 (2013) (appellate court reviews trial court’s

ruling limiting voir-dire questioning for abuse of discretion).


Harmless Error Analysis

                After concluding that the trial court abused its discretion in sustaining the State’s

objection, we must determine the nature of this error under Rule 44.2 of the Texas Rules of

Appellate Procedure regarding reversible error in criminal cases. Easley v. State, 424 S.W.3d 535,

539 (Tex. Crim. App. 2014). Rule 44.2(a) applies to constitutional errors subject to harmless-error

review and mandates that “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). Rule 44.2(b), on the other hand, applies to all

other errors and mandates that an “error, defect, irregularity or variance that does not affect

substantial rights must be disregarded.” Id. 44.2(b). Therefore, before we can apply the relevant

standard, we must determine whether the trial court’s error in sustaining the State’s objection rises

to the level of a constitutional error requiring application of the stricter Rule 44.2(a) standard.

                Appellant cites Rodriguez-Flores v. State, 351 S.W.3d 612, 624 (Tex. App.—Austin

2011, pet. ref’d), for the proposition that the trial court’s denial of a defendant’s right to ask a proper

                                                    4
question during voir dire is an error of constitutional magnitude and Jones v. State, 223 S.W.3d 379,

382 (Tex. Crim. App. 2007), for the proposition that the proper harm-analysis standard when defense

counsel is denied the opportunity to ask a permissible question is Rule 44.2(a). The Texas Court of

Criminal Appeals recently held, however, that erroneously limiting voir dire does not necessarily

equate to a violation of the constitutional right to be heard. See Easley, 424 S.W.3d at 541

(overruling Plair v. State, 279 S.W. 267, 269 (Tex. Crim. App. 1925), to extent that it held that

erroneously limiting voir dire is constitutional error because such limitation is per se violation of

right to counsel). As Plair’s progeny, Jones is no longer good law regarding the proper harm-

analysis standard. Similarly, to the extent that Rodriguez-Flores holds that denial of a proper voir

dire question is a per se violation of the right to counsel, it is also no longer helpful in our analysis.

                In Easley, the court of criminal appeals held that while there may be instances in

which a judge’s limitation on voir dire is “so substantial” as to rise to the level of a constitutional

error, such instances are generally the exception rather than the rule. See id. The court affirmed the

appellate court’s application of the more lenient non-constitutional harm analysis under Rule 44.2(b)

to the trial court’s erroneous refusal to allow the defendant’s counsel to compare the criminal burden

of proof beyond a reasonable doubt to other burdens of proof during voir dire. Id. The court agreed

with the appellate court’s holding that the trial court’s error did not rise to the level of a

constitutional error because defense counsel was not “foreclosed from explaining the concept of

beyond a reasonable doubt and exploring the veniremembers’ understanding and beliefs of

reasonable doubt by other methods.” Id. The correct inquiry to determine whether the error was of

a constitutional nature, therefore, was not whether defense counsel was prevented from exercising



                                                    5
his “preferred method” of questioning, but rather whether he was “precluded from discussing and

explaining the beyond-a-reasonable-doubt standard.” See id. at 542 (emphasis added).

               As the court of criminal appeals noted in Easley, the court of appeals reviewed the

record with special attention to defense counsel’s voir dire questioning and determined that counsel

was in fact able to discuss and explain the criminal standard of proof by individually asking

veniremembers what their verdicts would be if they had “a single doubt based on reason.” Id. All

answered “Not guilty,” indicating that defense counsel “was able to demonstrate and effectively

make his point that criminal trials require a heightened burden of proof and the presumption of

innocence.” Id. The appellate court also properly took note of defense counsel’s closing argument

in which he reiterated his point regarding the reasonable doubt standard: “[T]he State’s burden of

proof beyond a reasonable doubt . . . [is] used for taking away a person’s liberty . . . . Before you

take away the liberty of my client, all doubt based on reason as to [the crime he’s charged with] must

be excluded . . . .” Id. Under Rule 44.2(b), a reviewing court “should consider everything in the

record,” including evidence and closing arguments. Id.

               Appellant argues that under the instant circumstances the trial court’s denial of his

proposed voir-dire question resulted in a constitutional violation of his right to counsel because, had

defense counsel been allowed to proceed with the question, he could have identified additional

veniremembers to strike for cause, which would have resulted in a jury of less than twelve and

therefore a mistrial. Appellant disregards, however, the fact that defense counsel was able to

rephrase the question to an unobjectionable form from which he was able to generate a challenge for

cause to a veniremember. Defense counsel asked the jury if there was anyone among them “that



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could not follow beyond a reasonable doubt” as it had been explained to them.1 Juror number 133

raised her hand, prompting defense counsel to ask why she “couldn’t follow the law,” to which she

responded that she “wouldn’t be able to listen to one session or one rule and make [her] judgment

if [she] knew that there is a history.” Juror number 133 was thereafter stricken for cause for her

professed inability to follow the criminal standard of proof beyond a reasonable doubt. The record

does not indicate that any other jurors were similarly unable to hold the State to the heightened

criminal burden of proof beyond a reasonable doubt, as appellant contends.

               The record also reflects that during closing arguments defense counsel reminded the

jury of the importance of following the law regarding application of the criminal burden of proof by

charging the jury with deciding “whether the State has proved their case beyond a reasonable doubt.

Not whether it happened. Whether it was proved beyond a reasonable doubt.” Therefore, although

appellant’s counsel was not able to proceed with his preferred method of voir dire, he was not

precluded from discussing and explaining the beyond-a-reasonable-doubt standard of proof.

Therefore, appellant was not substantially injured by the trial court’s error in sustaining the State’s

objection. Because appellant’s defense counsel was able to instruct on and explain to the jury the

proof-beyond-a-reasonable-doubt standard, which the record suggests they comprehended, appellant

was not denied the right to counsel in violation of Article 1, Section 10 of the Texas Constitution.




       1
         During voir dire defense counsel undertook to explain the heightened burden of proof in
criminal trials with a visual demonstration using cups to represent the differing standards
—preponderance of the evidence, clear and convincing, and beyond a reasonable doubt.

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                                        CONCLUSION

               Having concluded that the trial court’s denial of appellant’s proposed voir-dire

question was harmless non-constitutional error, we affirm the trial court’s judgment.



                                             _____________________________________________
                                             J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Pemberton and Rose

Affirmed

Filed: August 7, 2014

Do Not Publish




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