
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-07-00015-CR


Quintin Carruthers, Appellant

v.


The State of Texas, Appellee





FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT

NO. 59228, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING



M E M O R A N D U M   O P I N I O N

A jury found appellant Quintin Carruthers guilty of aggravated robbery, for which
the trial court assessed punishment at sixty years' imprisonment.  See Tex. Penal Code Ann. § 29.03
(West 2003).  In his only point of error, appellant contends the trial court violated his constitutional
right to counsel by refusing to permit his attorney to ask a question during the jury selection process. 
We will affirm the conviction.
"In all criminal prosecutions the accused . . . shall have the right of being heard by
. . . counsel."  Tex. Const. art. I, § 10.  This state constitutional right to counsel includes the right
to pose proper questions during the voir dire examination of potential jurors.  Jones v. State,
223 S.W.3d 379, 381 (Tex. Crim. App. 2007).  In this case, appellant asserts that he was not
permitted to ask a proper question regarding the concept of reasonable doubt.  Counsel had asked
the panelists how, as parents, they might seek to learn the truth about an incident (a broken vase)
when their children told different stories about it.  After a discussion that went on for several pages
in the record, counsel asked:

[Defense counsel]: 	Okay.  All right.  Does everyone agree that testimony
that is unresolved, that's conflicting is unresolved by
the jurors that can be reasonable doubt?

[Prosecutor]:		Objection to the commitment.

. . . 

THE COURT:	Rephrase it.

[Defense counsel]:	Okay.  Would everyone agree that conflicting,
unresolved testimony could be reasonable doubt?

[Prosecutor]:		Judge, that is committing.  It's getting them to look at
a certain thing and decide for sure it's not beyond a
reasonable doubt.

THE COURT:	Sustained.


Counsel moved to another subject without further comment.
It is improper for an attorney to bind or commit a prospective juror to a verdict based
on a hypothetical set of facts.  Standefer v. State, 59 S.W.3d 177, 179 (Tex. Crim. App. 2001) (citing
Allridge v. State, 580 S.W.2d 471, 480 (Tex. Crim. App. 1991)).  Commitment questions are those
that commit a prospective juror to resolve, or to refrain from resolving, an issue a certain way after
learning a particular fact.  Id.  Although commitment questions generally call for a "yes" or "no"
answer, an open-ended question can be a commitment question if it asks the prospective juror to set
the hypothetical parameters for his decision-making.  Id. at 180.
Not all commitment questions are improper.  Id. at 181.  When the law requires jurors
to make a commitment--to be able to consider the full range of punishment for the offense, for
example--the attorneys may ask the prospective jurors whether they can follow the law in that
regard.  Id.  But where the law does not require the commitment--to be able to consider probation
when the victim is a nun, for example--a commitment question is invariably improper.  Id. at 180. 
Thus, for a commitment question to be proper, one of the possible answers to the question must give
rise to a valid challenge for cause.  Id. at 182.
Appellant argues that defense counsel's disallowed question did not seek a
commitment from the panelists to resolve, or to refrain from resolving, an issue a certain way based
on a particular fact or set of facts.  Instead, he contends that the question properly sought to
determine whether the prospective jurors believed that it was possible for conflicting testimony to
give rise to a reasonable doubt.  Appellant argues that counsel was properly seeking to discern the
thought process of the prospective jurors in order to intelligently exercise his peremptory challenges.
We agree that the concept of reasonable doubt is a proper subject for voir dire. 
This does not mean, however, that any question touching on that subject or that would produce an
answer helpful to counsel is proper.  For example, it is improper to ask a prospective juror, "Could
you find someone guilty on the testimony of one witness," or "Could you find someone guilty on
circumstantial evidence alone."  Id. at 183 n.28.  These questions seek to commit the prospective
juror to a finding of guilt or innocence if the juror is confronted with a particular fact--a single
witness or wholly circumstantial evidence.  While the prospective juror's "yes" or "no" answer to
one of these questions might be helpful to counsel in deciding whether to exercise a peremptory
challenge in a particular case, the answer would not give rise to a valid challenge for cause because
a juror who would not be convinced beyond a reasonable doubt by the testimony of a single witness
or by circumstantial evidence is not biased against the law, but merely has a higher threshold for
proof beyond a reasonable doubt than the minimum the law considers sufficient.  See Castillo
v. State, 913 S.W.2d 529, 533 (Tex. Crim. App. 1995).
Whether prospective jurors would agree that "conflicting, unresolved testimony
could be reasonable doubt" is a commitment question.  The question asks the panelists to commit
themselves to finding or not finding a reasonable doubt if there are unresolved conflicts in
the testimony. (1)  Such a commitment is not required by law.  The presence of an unresolved conflict
in the testimony does not, in itself, require a verdict of not guilty, and a prospective juror who could
be convinced beyond a reasonable doubt even when confronted by an unresolved conflict is not
challengeable for cause. (2)  Nor is a prospective juror challengeable for cause simply because
the juror's understanding of proof beyond a reasonable doubt would require a resolution of all
conflicts in the testimony; that is, if the juror has a higher threshold for proof beyond a reasonable
doubt than the minimum required by law.  Because counsel's question asked the jury panel for a
commitment where a commitment is not legally required, the trial court did not err by sustaining the
State's objection.
The point of error is overruled, and the judgment of conviction is affirmed.


				__________________________________________
				W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Waldrop and Henson
Affirmed
Filed:   November 29, 2007
Do Not Publish
1.   Use of "could" rather than "would" does not necessarily transform a commitment question
into a proper question, as the "could you convict on the testimony of one witness" and "could you
convict on purely circumstantial evidence" examples show.  Standefer v. State, 59 S.W.3d 177, 180
n.9 (Tex. Crim. App. 2001).
2.   This is not to say that an unresolved testimonial conflict cannot give rise to a reasonable
doubt, but only that a prospective juror cannot be bound to resolve every conflict in the testimony
by returning a verdict of not guilty.

