             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-19-00196-CR
     ___________________________

 CLINTON DWAYNE SANDEL, Appellant

                    V.

         THE STATE OF TEXAS


  On Appeal from the 355th District Court
          Hood County, Texas
        Trial Court No. CR13935


   Before Kerr, Bassel, and Womack, JJ.
  Memorandum Opinion by Justice Bassel
                          MEMORANDUM OPINION

                                   I. Introduction

      Appellant Clinton Dwayne Sandel appeals his conviction for failing to stop and

render aid. See Tex. Transp. Code Ann. § 550.021. A jury convicted him of the

offense and assessed his punishment at two years’ confinement in the Institutional

Division of the Texas Department of Criminal Justice and a $10,000 fine. The trial

court sentenced Appellant accordingly.

      In a single issue, Appellant contends that the trial court erred by sustaining an

objection to a voir dire question asked by his trial counsel. We hold that Appellant

failed to preserve error because he failed to make clear to the trial court the limited

nature of the question that he had allegedly wanted to ask and that is the predicate for

his claim on appeal. We therefore affirm the trial court’s judgment.

                      II. Factual and procedural background

      Appellant was indicted for

      intentionally or knowingly driv[ing] a vehicle which became involved in
      an accident resulting in death to [the decedent], and the said defendant
      did thereafter, knowing said accident had occurred, intentionally or
      knowingly leave the scene of said accident, without giving his name and
      address to any person, and without rendering reasonable assistance to
      [the decedent] when it was apparent that [the decedent] was in need of
      medical treatment[.]

      The State qualified the venire on a legislative amendment to the elements of the

offense that Appellant was indicted for. A 2013 amendment to the elements of the

offense provided that “[t]he operator of a vehicle involved in an accident that results

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or is reasonably likely to result in injury to or death of a person shall:                      . . .

(3) immediately determine whether a person is involved in the accident, and if a person is involved in

the accident, whether that person requires aid.” Id. § 550.021(a)(3) (emphasis added). The

State gave the following explanation for the change in the statute:

       [W]hat do you think a lot of people were doing when they were charged
       with this crime? Claiming that I didn’t know somebody was involved in
       the accident. I didn’t know I hit a person. Right? Well, the legislature
       got wise to that and they changed the law [by adding the language from
       the statute that is quoted above].

       The voir dire conducted by Appellant’s trial counsel mostly asked whether

prospective jurors could consider probation even if Appellant were found guilty of

the offense beyond a reasonable doubt. Most of the questions were asked without

objection. At certain points during the defense’s voir dire, the State asked for a bench

conference, but none of the bench conferences were transcribed.                        Late in the

defense’s voir dire, Appellant’s counsel switched to questions that involved the

elements of the offense. These questions appeared to question the jury about their

feelings on the portion of the statute that imposed the duty to determine whether a

person had been involved in an accident. We quote the entirety of the relevant

portion of the examination because it is impossible to follow the confused state of the

questioning without its context. Generally speaking though, Appellant’s trial counsel

asked questions first on ignorance of the law and later as if the 2013 amendment

never occurred, and although the bases of the State’s objections are not stated on the

record, presumably the State was arguing that Appellant’s trial counsel was asking the

                                                  3
venire to commit to defenses that were not legally valid. We highlight the questions

to which an objection was made and the trial court’s rulings on the objections:

      [DEFENSE COUNSEL]: Okay. Is there anybody here who feels that
      just because you’ve been in an accident and somebody died that that’s a
      crime?

                (No audible response.)

            [DEFENSE COUNSEL]: Anybody? If you found all the
      elements of the offense, then that would be a crime, but if you didn’t
      and you have a reasonable doubt, you would have to find the Defendant
      not guilty.

              Now, my question to you is could you consider a claim, if you
      will, that the Defendant did not knowingly stop and render aid? That’s
      part -- part of what you have to do.

                Anybody here who feels you can’t do that?

                [UNIDENTIFIED] VENIREPERSON: I’m confused when you
      said --

                [UNIDENTIFIED] VENIREPERSON: What did you say?

              [DEFENSE COUNSEL]: My question is could you consider whether or
      not the Defendant in this case is guilty because he didn’t stop and render aid because
      he didn’t know he was supposed to? The law will -- the judge will give you the law.

                [PROSECUTOR]: May we approach, Your Honor?

                (At the bench, off the record.)

                [PROSECUTOR]: I object, Your Honor.

                THE COURT: Sustained.

              [DEFENSE COUNSEL]: Could you consider the factors -- the accident,
      the whole -- all the factors, the lighting, the -- the -- the situation that was happening
      that, you know, somebody didn’t realize that they hit a -- hit a person?

                                                  4
      [PROSECUTOR]: I object, Your Honor.

      THE COURT: Sustained.

       [DEFENSE COUNSEL]: All right. Could you consider all the
factors and the circumstances in this case to determine whether or not
you could find the Defendant guilty of this offense?

      (No audible response.)

      [DEFENSE COUNSEL]: Could you do that? Anybody who
couldn’t?

      (No audible response.)

      [DEFENSE COUNSEL]: Anybody who could?

      [VENIREPERSON MR. J.]: I’m so confused.

       [VENIREPERSON MS. W.]: I’m going to throw a quote that my
father has told me for my whole life: Ignorance of the law is no excuse.

      [DEFENSE COUNSEL]: Well, that --

       [VENIREPERSON MS. W.]: So that’s what I think of whenever
I think of those things is just because you’re not aware of the law does
not mean that you -- that it does not pertain to you.

       [DEFENSE COUNSEL]: So, in other words, if the State failed
to prove their mental -- the mental part of the crime that you would still
find him guilty?

       [VENIREPERSON MS. W.]: I thought that you were referring
to what your client -- I thought you had said that somebody didn’t
realize they were supposed to render aid, but not knowing is not an
excuse. That’s what I thought I was answering, so I may have been
mistaken.

        [DEFENSE COUNSEL]: Well, what I’m asking is if the Defendant
did not realize that he had had an accident, did not realize --


                                    5
             [PROSECUTOR]: I object, Your Honor.

             THE COURT: Sustained.

             [DEFENSE COUNSEL]: Okay.

             [VENIREPERSON MS. W.]: I’m not sure how to answer.

             [DEFENSE COUNSEL]: Yes, sir?

              [VENIREPERSON MR. D.]: If he didn’t realize he had an accident,
      that’s obvious that, you know, he would be under the influence or something like that.

             [DEFENSE COUNSEL]: No, he wasn’t.

             [VENIREPERSON MR. D.]:                     How do you not know you hit
      something?

              [DEFENSE COUNSEL]: Well, he knew he hit something but he
      didn’t know he hit a person.

             [VENIREPERSON MR. D.]: So would you --

             [PROSECUTOR]: Your Honor, I --

             THE COURT: Let me see the lawyers up here.

             (At the bench, off the record.) [Emphasis added.]

      After the last bench conference, Appellant’s counsel ended his voir dire

without asking any further questions.

                                        III. Analysis

      A. Standard of review and preservation of error in the context of voir dire

      “We review the trial court’s limitation of the voir dire process for an abuse of

the trial court’s broad discretion to impose reasonable restrictions on the voir dire


                                                6
process.” Wilson v. State, No. 02-17-00280-CR, 2018 WL 6215889, at *7 (Tex. App.—

Fort Worth Nov. 29, 2018, no pet.) (mem. op., not designated for publication) (citing

Hernandez v. State, 390 S.W.3d 310, 315 (Tex. Crim. App. 2012)). “An abuse of

discretion occurs when a proper question about a proper area of inquiry is

prohibited . . . .”   Sandoval v. State, 571 S.W.3d 392, 397 (Tex. App.—Houston [1st

Dist.] 2019, no pet.) (citing Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002),

and Atkins v. State, 951 S.W.2d 787, 790 (Tex. Crim. App. 1997)).

       In voir dire, counsel must be proactive in establishing why the questions he

seeks to ask are proper because “[w]here the trial court placed no absolute limitation

on the substance of a defendant’s voir dire question, but merely limited a question due

to its form, defense counsel must rephrase the question or risk waiving the voir dire

restriction.” Wilson, 2018 WL 6215889, at *7 (citing Hernandez, 390 S.W.3d at 315).

Recently, the El Paso Court of Appeals catalogued the cases holding that the failure to

rephrase an improperly worded question forfeits any claim of error:

       The trial court has the discretion to require improperly phrased
       questions to be properly reworded; failing to do so forfeits any claimed
       error. 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) (op. on reh’g)] (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 phrased query or waive
       the voir dire restriction)[, overruled in part on other grounds by Easley v. State,
       424 S.W.3d 535 (Tex. Crim. App. 2014)]; Trevino v. State, 815 S.W.2d 592,

                                               7
           600–01 (Tex. Crim. App. 1991), rev’d on other grounds, 503 U.S. 562, 112
           S. Ct. 1547, 118 L.Ed.2d 193 (1992) (no error in restriction on voir dire
           pertaining to single question that could have been easily reworded);
           Moncada v. State, 960 S.W.2d 734, 737 (Tex. App.—El Paso 1997, pet.
           ref’d) (same).

Gonzalez v. State, No. 08-14-00293-CR, 2019 WL 1553583, at *14 (Tex. App.—El Paso

Apr. 10, 2019, pet. filed) (not designated for publication).

           As discussed below, it is improper to ask jurors to commit to what weight they

will accord particular testimony. To preserve error during the often confusing process

of determining whether a question improperly requires such a commitment, counsel

must make clear why the question being asked is proper:

           Whether an individual question posed to a panel of potential jurors
           focuses on bias or prejudice, or is a preview of evidence, is sometimes
           difficult to discern from the trial’s transcript. [Hyundai Motor Co. v.
           Vasquez, 189 S.W.3d 743, 753 (Tex. 2006).] Generally, the “trial judge is
           in a better position to evaluate the reasonableness of both aspects—the
           question and the answer.” Id. “When the trial court determines that a
           proffered question’s substance is confusing or seeks to elicit a pre-
           commitment from the jury, counsel should propose a different question
           or specific area of inquiry to preserve error on the desired line of inquiry;
           absent such an effort, the trial court is not required to formulate the
           question.” Id. at 758.

In re Commitment of Barbee, 192 S.W.3d 835, 846 (Tex. App.—Beaumont 2006, no

pet.). 1




       We cite to a civil case because of the overlap in standards in civil and criminal
           1

cases on issues involving voir dire. See Harrison v. State, No. 09-11-00031-CV, 2011
WL 3925705, at *1 n.1 (Tex. App.—Beaumont Aug. 25, 2011, pet. denied) (mem. op.,
not designated for publication).

                                                8
      B. Limitations on the ability to ask the venire panel how it will respond
      to specific evidence

      Much time is spent examining the propriety of asking the venire commitment

questions, i.e., questions that ask “a venireman to promise that he will base his verdict

or course of action on some specific set of facts before he has heard any evidence,

much less all of the evidence in its proper context.” Sandoval, 571 S.W.3d at 397

(quoting Sanchez v. State, 165 S.W.3d 707, 712 (Tex. Crim. App. 2005)).

      Certain classes of commitment questions are proper and others are not; the

Texas Court of Criminal Appeals has established a three-part test to distinguish

between the two:

          • First, the trial court must determine whether a particular question is in
            fact a commitment question. Id. (citing Standefer v. State, 59 S.W.3d 177,
            179 (Tex. Crim. App. 2001)).

          • Second, if it is a commitment question, then the court must decide
            whether it is nevertheless a proper commitment question. See id. (citing
            Standefer, 59 S.W.3d at 181). To determine whether the question is a
            proper commitment question, the court first inquires whether one of the
            possible answers to the question gives rise to a valid challenge for cause.
            See id. (citing Standefer, 59 S.W.3d at 181–82). If it does not, then the
            question is not proper and should be disallowed by the trial court. See id.
            at 397–98.

          • Third, if the commitment question gives rise to a valid challenge for
            cause, then the trial court must determine whether the question contains
            only those facts necessary to test whether a prospective juror is
            challengeable for cause. See id. at 398 (citing Standefer, 59 S.W.3d at 182).




                                           9
       C. Appellant has failed to preserve error

       Appellant’s brief concedes that “defense voir dire is not an example of clarity.”

We agree. As we construe Appellant’s argument, he tries to isolate as error a fragment

of a question (“I’m asking . . . if the Defendant did not realize that he had had an

accident . . . .”) to which the trial court sustained an objection. In doing so, he ignores

the confused context in which the question was asked and the fact that the question

appeared that it might be swerving off into a topic to which the trial court had already

sustained an objection. When the venire responded to the fragment of the question

he asked, Appellant’s trial counsel tried to rephrase the question and asked the same

question to which an objection had been sustained. If counsel was trying to ask the

narrow question that Appellant’s brief contends he was trying to ask, counsel never

made that point to the trial court, and we hold that the alleged error was not

preserved.

       As set forth above, the State qualified the jury on the recent statutory

amendment to the offense that imposed a duty on a person involved in an accident to

“immediately determine whether a person is involved in the accident.” See Tex.

Transp. Code Ann. § 550.021(a)(3). As we have noted, Appellant’s counsel attempted

to commit the venire on whether they would consider if Appellant knew that he had

hit a person. The State argues in its brief that Appellant’s question is an improper

commitment question. Specifically, the State argues that the question is improper on

the basis that it would not give rise to a valid challenge for cause because the offense

                                            10
is not predicated on knowing that a person was struck but on the failure to stop and

determine whether a person was struck. We agree that the question would not give

rise to a valid challenge for cause, and Appellant does not contend that this argument

is in error.

       Instead, Appellant appears to argue that his trial counsel worked in a proper

question between the improper commitment questions and that the trial court erred

by sustaining an objection to the proper question. Appellant focuses on the question

fragment: “Well, what I’m asking is if the Defendant did not realize that he had had

an accident, did not realize --” to which the trial court sustained the State’s objection.

Appellant contends that this question was proper because “[i]f a juror answered, ‘I do

not care if the defendant knew he was in an accident or not, I would find him guilty’ it

might give rise to a challenge for cause as a demonstration of bias.”

       If this were the limited question that counsel was trying to ask, he never made

that clarification to the trial court. The objection was made as counsel was adding

verbiage to his question from which it appeared that he might again be asking the

improper question of whether Appellant knew that he had hit a person. Indeed, when

a member of the venire responded to the question and obtained a clarification of the

question, Appellant’s trial counsel reverted to the questionable theme that Appellant

did not know that he had hit a person. The trial court faced the confusing voir dire

environment that the standard of review and the rules of preservation address. In that

environment, Appellant apparently wanted the trial court to subtly parse whether

                                           11
defense counsel was asking a proper question or was trying to circle back to the

improper commitment question. If Appellant’s trial counsel was trying to ask the

limited question that Appellant now contends he was trying to ask (that he was not

aware that he had an accident), he had the obligation to help the trial court understand

how his question embodied that limitation. That clarification was not made for the

trial court, and we hold that Appellant has failed to preserve the claim that the trial

court abused its discretion by sustaining the objection to the question being

propounded when there was no clarification that counsel was not trying to repeat the

improper question that he had just asked.2 We overrule Appellant’s sole issue.

                                   IV. Conclusion

      Having overruled Appellant’s sole issue, we affirm trial court’s judgment.

                                                      /s/ Dabney Bassel

                                                      Dabney Bassel
                                                      Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: February 13, 2020




      2
        As the quotations from the record show, several bench conferences were held
during the defense’s voir dire. They were not transcribed, and we do not know what
occurred during those conferences. To preserve a complaint, an appellant must
obtain a ruling; objections and rulings made during untranscribed bench conferences
do not preserve error because we do not know what objections or rulings were made.
See Wilson, 2018 WL 6215889, at *7.

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