                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-13-00149-CR



            RAYMOND SOTELO, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



          On Appeal from the 3rd District Court
               Anderson County, Texas
                Trial Court No. 30499




       Before Morriss, C.J., Carter and Moseley, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                    MEMORANDUM OPINION
        During the voir dire portion of Raymond Sotelo’s Anderson County 1 trial that resulted in

his conviction 2 on the charge of assault on a public servant, two things happened that have given

rise to Sotelo’s two appellate complaints. A number of potential jurors indicated that they might

hold against Sotelo his failure to testify, ultimately resulting in three other objectionable persons

serving on the jury. And a question seeking to identify any prejudiced panelists was disallowed

on the basis that it was an improper commitment question. Because (1) no error has been

preserved concerning the three jurors that served and (2) error in disallowing the voir dire

question was, beyond a reasonable doubt, harmless, we affirm the trial court’s judgment.

(1)     No Error Has Been Preserved Concerning the Three Jurors that Served

        During voir dire, approximately fourteen potential jurors indicated that they might have a

problem with Sotelo’s exercising his constitutional right not to testify at trial. After addressing

those fourteen and using peremptory strikes on three of those that the trial court did not

disqualify for cause, Sotelo unsuccessfully asked the trial court for three additional peremptory

strikes. On appeal, Sotelo claims that, as a result, three objectionable jurors—not among the

identified fourteen panelists—served on his jury. Because the record does not reflect that Sotelo

complained to the trial court about those three jurors, this complaint has not been preserved for

our review.

1
 Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We are
unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant
issue. See TEX. R. APP. P. 41.3.
2
 Sotelo was sentenced to twenty years’ imprisonment. See TEX. PENAL CODE ANN. §§ 12.42(a), 22.01(b)(1) (West
Supp. 2013).

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          Sotelo argues the trial court erred by not striking veniremembers who, according to

Sotelo, “unequivocally signaled they would not give full effect” to his right not to testify. Sotelo

points to his voir dire of the panel, when his attorney asked the panel if anyone would “have

trouble” or hold it “against the Defendant” if he exercised his right not to testify. Several

veniremembers—fourteen by our reading of the record—raised their hands. Sotelo claims that,

while some of these members were struck by agreement of the parties or for cause, the trial court

denied Sotelo’s request that three of those be struck for cause. As a result, Sotelo apparently

exercised peremptory strikes on these three veniremembers, but was denied a request for

replacement peremptory strikes. Sotelo claims that, as a result, three objectionable jurors were

placed on the jury.

          To preserve error on denied challenges for cause, the record must demonstrate that the

complaining party (1) asserted a clear and specific challenge for cause, (2) used a peremptory

challenge on the (objectionable) venire member, (3) exhausted all peremptory challenges,

(4) requested an additional strike, (5) objected to the juror that sat on the jury, and (6) established

that the serving objectionable juror would have been struck with a peremptory strike if such

added strike had been granted by the trial court. Howes v. State, 120 S.W.3d 903, 908 (Tex.

App.—Texarkana 2003, pet. ref’d) (citing Allen v. State, 108 S.W.3d 281, 282 (Tex. Crim. App.

2003)).

          The conduct of voir dire examination rests within the sound discretion of the trial court,

and only an abuse of discretion requires a reversal on appeal. Whitaker v. State, 653 S.W.2d 781

(Tex. Crim. App. 1983). We consider the entire record when determining whether there is

                                                  3
sufficient evidence to support the court’s decision to grant or deny a challenge for cause. Patrick

v. State, 906 S.W.2d 481, 488 (Tex. Crim. App. 1995); Howes, 120 S.W.3d at 909. Before we

can analyze Sotelo’s first point of error, we must determine if he properly preserved error.

“[P]reservation of error is a systemic requirement that a first-level appellate Court should

ordinarily review on its own motion.” Alonzo v. State, 158 S.W.3d 515, 516 (Tex. Crim. App.

2005).

         An appellant will be able to raise, on appeal, objections to the refusal to grant challenges

for cause, if the voir dire record reflects that an objection was submitted either during the voir

dire or at the time of the trial court’s ruling and that the objection was not abandoned.

Zimmerman v. State, 860 S.W.2d 89, 95 (Tex. Crim. App. 1993), vacated on other grounds, 510

U.S. 938 (1993). If the defendant fails to object, he or she may not subsequently challenge that

ruling on appeal. Ladd v. State, 3 S.W.3d 547, 562 (Tex. Crim. App. 1999).

         After the fourteen panelists had been identified, the attorneys discussed challenges for

cause, the trial court summarized Sotelo’s challenges to the fourteen veniremembers by their voir

dire numbers, and Sotelo’s attorney agreed those were the subjects of her challenges. Of those

fourteen, nine were in the “strike zone” of venirepersons who could possibly make it to the petit

jury. From the record, we are able to identify with reasonable certainty the nine venirepersons

who were both subject to Sotelo’s challenges and in the range of potential jurors.

         To establish error on appeal, Sotelo must identify an objectionable juror who ultimately

sat in the case. See Gonzales v. State, 353 S.W.3d 826, 831 (Tex. Crim. App. 2011). Sotelo

never identified to the trial court which jurors would have been struck had the trial court granted

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the three additional peremptory strikes. In his appellate brief, he claims that, had he not been

required to use peremptory strikes on veniremembers 6, 17, and 23, he would have used those

strikes on jurors House, Kanetzky, and Taylor. The problem is that there is nothing in the record

showing that Sotelo advised the trial court that jurors House, Kanetzky, and Taylor were

objectionable.

         Out of caution, we explore whether these three might have been identified as

objectionable in the initial group that expressed having a problem with Sotelo not testifying. As

best we can tell, they were not so identified. Many panelists had been pointed out at trial as

being objectionable, but, from our reading, never were House, Kanetsky, or Taylor so identified.

During voir dire, eight of the nine veniremembers in the strike zone who indicated they could

hold against Sotelo his failure to testify were identified by name. Only veniremember 7 does not

appear to have been addressed by name. 3

         In the record, Kanetzky is identified as juror 32, and Taylor is identified as juror 39.

House, though, was never identified by number. Complicating our review of the record is the

fact that when Sotelo’s attorney asked the question about an accused’s right not to testify, she

stated the numbers or names of the people who apparently were raising their hands:

         [Defense counsel]: So, Mr. Wilbanks. Okay. And -- I’m sorry. Ms. Anderson?

                  ....

         Okay. I’ll try to do this as fast as I can. Anyone else on this first row? Okay. I
         saw Mr. Chasten, number 23. Mr. Jenkins, number 21. All right. And then
         Mr. Houck, number 17. Okay. What about -- okay. I see -- 34 is Mr. Foreman.

3
 The clerk’s record does not include a list of the venire; each party’s list of peremptory strikes and the jury list are
included.
                                                           5
        Okay. Then is that Mr. Miller and Ms. Rodriguez, number 49 and 50. Okay. Let
        me go to the first row on this side. Okay. Mr. Hill, number 16. Okay. And
        Ms. Mendiola, number 30. Okay. And Ms. Bartley, number 62. And
        Ms. Shannon, number 61. All right. Anyone else?

                ....

        Okay. Number 56, and you’re Ms. Kurz. Okay. And -- Mr. Bankston, that’s
        number 20. . . .

                ....

        Okay. All right. And Ms. Kelley, Number 51?

                ....

In making this record, defense counsel stated each relevant venireperson’s number and name

except panelists Wilbanks, Anderson, and Harris. At other locations in the record, Wilbanks is

identified as juror number 6 and Harris as number 42. Anderson was not identified by number;

but when defense counsel made her challenges for cause based on the Fifth Amendment issue,

the trial court read off the venirepersons who had raised their hands or indicated they could not

follow the law on this issue. The trial court’s list of numbers match the numbers read with

names that counsel stated at the time of the questioning, with only venireperson 7 not

corresponding to a name read by counsel earlier. With Wilbanks and Harris identified by

number, it is reasonable to deduce that number 7 was Anderson. This further undermines any

argument Sotelo might make that jurors House, Kanetzy, and Taylor were identified to the trial

court as being objectionable.

        Since Sotelo failed to establish that any of the three objectionable jurors had been pointed

out to the trial court, we overrule this issue.

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(2)    Error in Disallowing the Voir Dire Question Was, Beyond a Reasonable Doubt,
       Harmless

       Sotelo claims the trial court limited his ability to question the venire about any possible

bias or prejudice they might have against him.

       Late in voir dire, Sotelo’s attorney asked whether anyone in the panel thought Sotelo, as a

twenty-six-year-old Hispanic male, was more likely to commit assault than any other person.

The trial court sustained the State’s objection that this was an improper commitment question.

Sotelo argues in his second point of error that this was a constitutional error warranting reversal.

       A criminal defendant is constitutionally entitled to an impartial jury.         U.S. CONST.

amend. VI. Improper commitment questions by either the State or defendant are prohibited to

       ensure that the jury will listen to the evidence with an open mind--a mind that is
       impartial and without bias or prejudice--and render a verdict based on that
       evidence. Commitment questions require 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. It is this
       prejudgment of the value and importance of certain evidence that is the evil to be
       avoided unless the law requires such a commitment.

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

       Commitment questions are improper (a) when the law does not require the commitment,

such that a juror would not be disqualified for cause by being influenced by a particular fact or

by having a particular attitude or opinion, or (b) even if the question meets the challenge for

cause requirement, if it also includes facts in addition to those necessary to establish a challenge

for cause. An improper commitment question attempts to create a bias or prejudice in the

venireman before he or she has heard the evidence, whereas a proper voir dire question attempts

to discover a venireman’s preexisting bias or prejudice. Standefer v. State, 59 S.W.3d 177, 181–
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82 (Tex. Crim. App. 2001). To be proper, a commitment question must contain only those facts

necessary to test whether a prospective juror is challengeable for cause. Id. at 182.

       Sotelo’s attorney asked the venire the following:

       Now, let me ask you, you have just a short chance to observe physically
       Mr. Sotelo. He’s a young Hispanic male, age 26. Okay. Is there anything about
       those facts, those are biological facts, but is there anything about those facts that
       makes anyone think he’s more likely to commit assault than anybody else?

The State objected, “Objection, Your Honor, calls for a commitment. Violation of --” and the

trial court sustained the objection. Sotelo treats the State’s objection as having been to an

allegedly improper commitment question contra to the holding of Standefer, and from the

context that is a reasonable interpretation of the objection and the court’s ruling. Immediately

after this, defense counsel asked,

       Okay. All right. Everybody has observed Mr. Sotelo. Is there anything about --
       that you see about Mr. Sotelo that you -- just seeing him, physically, that you
       think would tend to influence your verdict, just age, appearance?

No objection was lodged.

       The first question, which the State successfully objected to, inquired whether any person

on the venire was predisposed to believe Sotelo more likely guilty of assault based on his age,

sex, or race. If so, such venireperson would have been properly challengeable for cause. The

question was thus permissible, and it was error to disallow it. See id. at 181–82.

       The Sixth Amendment guarantees the right to a trial before an impartial jury. U.S.

CONST. amend VI. The Texas Court of Criminal Appeals has held that “essential to the Sixth

Amendment guarantees of the assistance of counsel and trial before an impartial jury ‘is the right

to question veniremembers in order to intelligently exercise peremptory challenges and
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challenges for cause.” Franklin v. State, 138 S.W.3d 351, 354 (Tex. Crim. App. 2004) (quoting

Raby v. State, 970 S.W.2d 1, 10 (Tex. Crim. App. 1998)). We review an improper limitation of

defense counsel’s right to question the venire for constitutional error. 4 See Jones v. State, 223

S.W.3d 379, 381–83 (Tex. Crim. App. 2007).5

            When analyzing the record for harm after an improperly disallowed voir dire question,

we review the entire record including:

            (1) any testimony or physical evidence admitted for the jury’s consideration;
            (2) the nature of the evidence supporting the verdict; (3) the character of the
            alleged error and how it might be considered in connection with other evidence in
            the case; (4) the jury instructions; (5) the State’s theory and any defensive
            theories; (6) closing arguments; (7) voir dire; and (8) whether the State
            emphasized the error.

Jones v. State, 264 S.W.3d 26, 28 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). 6 We must

reverse Sotelo’s conviction unless we determine, beyond a reasonable doubt, that the error did

not contribute to Sotelo’s conviction or punishment. See TEX. R. APP. P. 44.2(a).

            Certainly, Sotelo suffered no harm. Immediately after the trial court sustained the State’s

objection, Sotelo’s attorney was able to ask essentially the same question. The question allowed

was whether Sotelo’s age and physical appearance would tend to influence their verdict. When

counsel is able to ask “essentially the same” question as the one disallowed, or to obtain


4
    See TEX. R. APP. P. 44.2(a).
5
 In Rich v. State, 160 S.W.3d 575 (Tex. Crim. App. 2005), the court assumed that denial of a proper voir dire
question would be evaluated as nonconstitutional error under Rule 44.2(b) of the Texas Rules of Appellate
Procedure because the appellate court had concluded such was the appropriate standard and the appellant did not
contest such analysis. See TEX. R. APP. P. 44.2(b).
6
 Jones cited to Rich, but specifically stated that the court was applying “the heightened Rule 44.2(a) standard of
review” in considering the listed factors. Jones, 264 S.W.3d at 28.
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essentially the same information, there is no harm. See Woods v. State, 152 S.W.3d 105, 110

(Tex. Crim. App. 2004); Rachal v. State, 917 S.W.2d 799, 815 (Tex. Crim. App. 1996).

       Beyond a reasonable doubt, the trial court’s erroneous limitation of Sotelo’s voir dire

questioning did not contribute to the conviction or sentence.

       We affirm the trial court’s judgment.



                                               Josh R. Morriss, III
                                               Chief Justice

Date Submitted:       December 31, 2013
Date Decided:         February 6, 2014

Do Not Publish




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