Affirmed and Memorandum Opinion filed August 18, 2020.




                                      In The

                       Fourteenth Court of Appeals

                              NO. 14-19-00587-CR

                        COLLINS MCCRAY, Appellant

                                        V.
                       THE STATE OF TEXAS, Appellee

                   On Appeal from the 182nd District Court
                           Harris County, Texas
                       Trial Court Cause No. 1536884

                          MEMORANDUM OPINION

      In this appeal from a conviction for unlawful possession of a firearm, the sole
question presented is whether the trial court committed reversible error when it
overruled an objection to an improper commitment question. For the reasons
explained below, we find no such error and affirm the trial court’s judgment.
                                  BACKGROUND

       An officer heard multiple shots ring out during his nightly patrol of a
neighborhood. As the officer drove in the direction of the gunfire, he rounded a street
corner and saw a group of people congregating outside. The officer believed that he
heard additional shots originating from this group, and that the shots must have been
fired into the air because the group was not dispersing.

       The officer detained the individuals in the group, which included appellant.
The officer did not find a firearm on appellant’s person, but there were spent shell
casings in his vicinity, and a firearm was discovered in a maroon vehicle that was
also close to him. The firearm was in plain view near the center console, directly
next to the driver’s seat. The maroon vehicle was not registered to appellant, but
appellant referred to it as his own, and he expressed concern that the officer was
going to tow it.

       The officer learned from another witness at the scene that appellant was the
individual who had been shooting rounds into the air. The witness was a resident of
the neighborhood, and she said that she saw appellant drive up in the maroon vehicle
with a passenger. She said that appellant and the passenger exited the vehicle, and
that appellant then boasted to a group of men that he had a “new toy,” referring to
the firearm. The resident said that appellant was not trying to be threatening to
anyone when he discharged the firearm. She said that appellant was just showing
off.

       Because he had a prior felony conviction, appellant was charged with
unlawful possession of a firearm. He pleaded not guilty, but he did not testify during
his trial. Instead, he called a single defense witness, who testified that appellant had
been a passenger in a gray vehicle (not the driver of the maroon vehicle), and that
appellant never possessed a firearm. This defense witness also opined that the
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shooting was caused by someone who had been driving around in a white car. The
jury implicitly rejected this testimony when it convicted appellant of the charged
offense.

                          COMMITMENT QUESTION

      During voir dire, the prosecutor asked a series of questions to test the venire
panel’s understanding of possession. The prosecutor began by asking one
venireperson if he had a wallet on his person. The venireperson answer affirmatively,
and he agreed with the prosecutor’s follow-up notion that he was in possession of
both the wallet and everything it contained.

      The prosecutor then moved to another venireperson who had a purse, which
was presumably on the floor. This venireperson agreed with the prosecutor that she
was in possession of the purse, even though she was not actually holding it.

      The prosecutor turned to the next venireperson in line, and asked whether she
had a television at home. This venireperson agreed with the prosecutor that she was
in possession of the television even though it was nowhere near her because she
controlled the television by restricting the people allowed into her home.

      The prosecutor then began a series of hypotheticals. The prosecutor asked one
venireperson to imagine that she had leant her car to another person. The
venireperson agreed under this hypothetical that the other person would be in
possession of anything he brought into the car, like an umbrella.

      The prosecutor then asked another venireperson to imagine that he was
driving a car with a passenger, and that the passenger had brought an umbrella with
him that was placed in between them both. When the prosecutor asked the
venireperson about who possessed the umbrella, defense counsel interjected and
requested to approach the bench. Counsel then objected that the prosecutor’s

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hypothetical was an improper commitment question because it was “getting into the
actual facts of the case.” The prosecutor reiterated that he was only asking about an
umbrella. The trial court remarked that the prosecutor was allowed to ask
hypothetical questions about possession. The trial court overruled counsel’s
objection but admonished the prosecutor to be careful about getting into the facts of
the case.

      When the voir dire continued, the venireperson answered the hypothetical by
opining that only the passenger would be in possession of the umbrella because he
owned it. When the prosecutor asked if the driver would also be in possession if the
passenger had granted him permission to use it, the venireperson answered that there
would be joint possession of the umbrella.

      The prosecutor ended the exchange with this summary: “Exactly. So, the point
there being we don’t have to prove ownership. You don’t have to own something in
order to possess it. And multiple people can possess the same thing at the same time.
Right? If you’re married or if you have a wife at home, you’re in possession of the
TV just the same as she is. So, the things I’m not required to prove for possession
are that the defendant owns, used, bought the firearm or that [he] had it on [his] hand
or [his] body. Just that [he] possessed it.”

      Appellant now argues that the prosecutor’s hypothetical was an improper
commitment question, and that the trial court reversibly erred by allowing the
prosecutor to ask it. In analyzing this argument, our review is limited to deciding
whether the trial court’s ruling was an abuse of discretion. See Barajas v. State, 93
S.W.3d 36, 38 (Tex. Crim. App. 2002).

      We begin by recognizing the general rule that the prosecutor may use
hypothetical fact situations in order to explain the application of a particular law to
the venire panel. See Riddle v. State, 888 S.W.2d 1, 6 (Tex. Crim. App. 1994). This
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rule is subject to the restriction that the prosecutor may not ask a hypothetical
question that amounts to an improper commitment question.

       When considering whether the prosecutor has asked an improper commitment
question, we apply a two-part test. See Standefer v. State, 59 S.W.3d 177, 182–83
(Tex. Crim. App. 2001). First, we must determine if the prosecutor’s question is in
fact a commitment question. Id. The question calls for a commitment if one of its
possible answers would require the venireperson to resolve an issue or to refrain
from resolving an issue on the basis of one or more facts contained within the
question. Id. at 180. If the question is a commitment question, then we move on to
the second part, which requires that we determine whether the question is proper or
improper. Id. at 182–83. For the question to be proper, one of its possible answers
must give rise to a valid challenge for cause, and the question must contain no more
facts than necessary to test whether the venireperson is challengeable for cause. Id.
If no possible answer would give rise to a valid challenge for cause, or if the question
contains too many facts, then the question is improper and the trial court should not
allow it. Id.

       Applying these principles to appellant’s case, we can assume without deciding
that the prosecutor’s question about the umbrella called for a commitment about joint
possession. Nevertheless, we conclude that the commitment question, if any, was
proper because it illustrated the legal definition of possession. Had the venireperson
remained steadfast in his opinion that only the passenger was in possession of the
umbrella (or alternatively, that no one was in possession of the umbrella), then the
prosecutor would have established a valid basis for challenging the venireperson for
cause because the venireperson would have misapplied the definition of possession.
See Bravo v. State, 471 S.W.3d 860, 873–84 (Tex. App.—Houston [1st Dist.] 2015,
pet. ref’d) (concluding that a series of hypothetical questions were proper because

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they illustrated the law of parties). Also, the hypothetical question contained only
the information necessary to illustrate the prosecutor’s point about joint
possession—i.e., that the umbrella was situated between two people. These facts
were not specific to appellant’s case, which involved a firearm discovered in an
unoccupied vehicle, which had only been formerly occupied by two people. See Lee
v. State, 176 S.W.3d 452, 461 (Tex. App.—Houston [1st Dist.] 2004) (concluding
that a question was proper because it “did not contain additional facts specific to the
case at bar that are unnecessary to explain the application of the law”), aff’d, 206
S.W.3d 620 (Tex. Crim. App. 2006).

      Even if we were to assume for the sake of argument that the prosecutor’s
hypothetical had been an improper commitment question, we would conclude that
the trial court’s error in allowing the hypothetical did not affect appellant’s
substantial rights. See Tex. R. App. P. 44.2(b).

      When assaying potential harm from an improper commitment question, the
ultimate issue is whether the defendant was tried by an impartial jury, or conversely,
whether the jury or any specific juror was “poisoned” by the improper commitment
question. See Sanchez v. State, 165 S.W.3d 707, 713 (Tex. Crim. App. 2005). There
is no single, specific rule by which reviewing courts should assess this question of
harm. Id. Courts instead consider the following set of non-exclusive factors:
(1) whether the question was unambiguously improper; (2) how many, if any,
venirepersons agreed to commit themselves; (3) whether the venirepersons who
agreed to commit themselves actually served on the jury; (4) whether the defendant
used peremptory challenges to eliminate any or all of those venirepersons;
(5) whether the defendant exhausted all of his peremptory challenges upon those
venirepersons and requested additional peremptory challenges; (6) whether the
defendant timely asserted that a named objectionable venireperson actually served

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on the jury because he had to exhaust his strikes on an improperly committed juror;
and (7) whether there is a reasonable likelihood that the jury’s verdict was
substantially affected by the improper commitment question. Id. at 714.

      In this case, not one of the venirepersons who was questioned on the subject
of possession actually served on the jury, not even the venireperson who was
presented with the hypothetical about the joint possession of the umbrella. They
were all struck. In the process of making his strikes, defense counsel did not revisit
the issue of the prosecutor’s improper commitment question. Counsel did not request
additional strikes or suggest that an objectionable juror was seated because his
peremptory strikes were exhausted on other venirepersons.

      Nonetheless, appellant suggests in his brief that the entire venire panel was
poisoned by the prosecutor’s hypothetical. The record does not support this
suggestion. The prosecutor’s leading theory during the trial was that appellant
actually discharged the firearm, as the resident had testified. This evidence
established appellant’s individual possession over the firearm, which made the issue
of joint possession superfluous.

      Defense counsel suggested during the trial that the actual shooter was the
resident’s husband, and that the resident had falsely redirected blame on appellant.
But the jury had a substantial basis for rejecting this theory. The resident testified
that appellant had been driving a red or maroon vehicle. That evidence is consistent
with the officer’s testimony that the firearm was discovered in a maroon vehicle,
which appellant had also identified as his own.

      There was a defense witness who had controverted all of this testimony by
claiming that appellant never had a firearm, that appellant was just a passenger in a
gray vehicle, and that the actual shooter was driving around in a white vehicle when
the shots were fired. The jury implicitly determined that this defense witness was
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not credible, and there is no indication that this credibility determination was
influenced by the prosecutor’s commitment question about joint possession. The
jury’s credibility determination was more likely influenced by the evidence showing
that appellant was near the spent shell casings and that the casings belonged to the
firearm that was still at the scene, in the maroon vehicle.

      For the foregoing reasons, we conclude that there is no reasonable likelihood
that the jury was affected by the prosecutor’s commitment question, and that any
error by the trial court in allowing that question was harmless.

                                  CONCLUSION

      The trial court’s judgment is affirmed.




                                        /s/       Tracy Christopher
                                                  Justice


Panel consists of Justices Christopher, Jewell, and Hassan.
Do Not Publish — Tex. R. App. P. 47.2(b).




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