Affirmed as Modified; Opinion Filed October 30, 2014.




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-13-00673-CR

                                OSCAR AVILA, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                       On Appeal from the 194th Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. F-1271796-M

                              MEMORANDUM OPINION
                        Before Justices FitzGerald, Fillmore, and Stoddart
                                   Opinion by Justice Stoddart
       A jury convicted Oscar Avila of indecency with a child and sentenced him to six years’

confinement. In two issues, Avila argues the trial court erred during jury selection by granting

the State’s challenge for cause of a potential juror based on an improper commitment question

and he argues the judgment should be modified to reflect the correct offense for which he was

convicted. The State agrees that the judgment should be modified. We modify the judgment to

reflect that Avila was convicted of indecency with a child by contact, rather than “indecency

child continuous” as mistakenly appears in the trial court’s judgment. As modified, we affirm

the trial court’s judgment.

       In his first issue, Avila argues the trial court abused its discretion by granting one of the

State’s challenges for cause because the State asked an improper commitment question of a

potential juror. The State asked the venire whether one witness’s testimony would be sufficient
evidence for each person to return a guilty verdict. The juror at issue in this case (Potential

Juror) replied: “[d]epends on the age who was testifying.”        The following exchange then

occurred:

               [Prosecutor]:           Okay. In my fact scenario, you believe the child
       beyond a reasonable doubt and you believe that we have proven all of those
       elements through her beyond a reasonable doubt?
               [Potential Juror]:      If you are talking a six-year-old child, I am still
       having doubts.
               [Prosecutor]:           Okay.
               [Potential Juror]:      If you are talking a teenager, high school, then
       probably I would believe her.
               [Prosecutor]:           Let me ask you this, do you think a child who is six
       can’t be truthful on the stand?
               [Potential Juror]:      Not entirely.
               [Defense Counsel]: Judge, object to putting specific age into the
       question.
               THE COURT:              I will overrule the objection.
               [Prosecutor]:           You have given me a six-year-old-child scenario, do
       you believe that child couldn’t be truthful or is your question more about is the
       child competent to testify?
               [Potential Juror]:      Competent would be more the issue than the six-
       year-old lying.
                ...
               [Potential Juror]:      I have had kids. I have had three kids, and the
       middle kid look me straight in the eye and lie and I knew it.

   The prosecutor then continued to question other members of the venire.           Later,

Potential Juror was questioned outside of the presence of the venire:

               [Prosecutor]:          Okay. Well, let me ask you this, do you believe that
       a child - - and you put forward the age of six?
               [Potential Juror]:     Yes.
               [Prosecutor]:          - - do you believe that a child at the age of six - -
               [Defense Counsel]: Judge, objection to going into the facts of the case.
               [Court]:               Okay. Please do not go into the facts of the case.
               [Prosecutor]:          I understand, Judge.
               [Potential Juror]:     If it were elementary age child, young elementary
       age, my feeling is often that that child is going to say what they think the grown-
       ups want to hear. The grown-ups have an - - often it is - - I think it could be an
       involuntary coaching on the grown-ups [sic] part, and the child thinks the grown-
       ups want me to say this is what happened.
               [Prosecutor]:          All right. So do you believe that a child can’t be
       truthful?

                                               –2–
               [Potential Juror]:         Children lie, yes. If they feel like this is in my best
       interest to tell a lie, they will.
               [Prosecutor]:              Okay. Are you willing to take those preconceived
       notions and automatically give a child less credibility if they testify?
               [Potential Juror]:         I would probably be taking it with a grain of salt.
               [Prosecutor]:              So you wouldn’t be able to start a child off equally
       [sic] say an adult?
               [Potential Juror]:         Right.
               [Prosecutor]:              You would be more inclined to believe an adult?
               [Potential Juror]:         Yes.
               [Prosecutor]:              And start a child off with less credibility?
               [Potential Juror]:         Yes.

The trial court granted the State’s motion to strike Potential Juror for cause because Potential

Juror indicated “that she believes that a younger child would be more susceptible to adults - - or

less credible.”

       We review a trial court’s ruling on an allegedly improper commitment question during

voir dire for an abuse of discretion. Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002).

       A commitment question “attempt[s] 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) (quoting Allridge v. State, 850 S.W.2d 471, 480 (Tex. Crim. App. 1991)). 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.” Sanchez v. State, 165 S.W.3d 707, 712 (Tex. Crim. App. 2005); Standefer, 59

S.W.3d at 179 (commitment questions “are those that commit a prospective juror to resolve, or

refrain from resolving, an issue a certain way after learning a particular fact”).            Improper

commitment questions 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

upon that evidence.” Sanchez, 165 S.W.3d at 712. Not all commitment questions are improper.

Standefer, 59 S.W.3d at 181.



                                                 –3–
       The Court of Criminal Appeals has articulated a three-part test for determining whether a

voir dire question is an improper commitment question. Id. at 179–84; Braxton v. State, 226

S.W.3d 602, 604 (Tex. App.—Houston [1st Dist.] 2007, pet. dism’d). First, the trial court must

determine whether the particular question is a commitment question. Standefer, 59 S.W.3d at

179. A question is a commitment question if “one or more of the possible answers is that the

prospective juror would resolve or refrain from resolving an issue in the case on the basis of one

or more facts contained in the question.” Id. at 180. Second, if the question is a commitment

question, the trial court must then determine whether it is a proper commitment question. Id. at

181 (“When the law requires a certain type of commitment from jurors, the attorneys may ask

the prospective jurors whether they can follow the law in that regard.”); Braxton, 226 S.W.3d at

604. A commitment question is proper if one of the possible answers to the question gives rise

to a valid challenge for cause. Standefer, 59 S.W.3d at 182; Braxton, 226 S.W.3d at 604. If the

question does not, then it is not a proper commitment question and it should not be allowed by

the trial court. Standefer, 59 S.W.3d at 182. Third, if the question does give rise to a valid

challenge for cause, then the court must determine whether the question “contain[s] only those

facts necessary to test whether a prospective juror is challengeable for cause.” Id. “Additional

facts supplied beyond what is necessary to sustain a challenge for cause render improper what

otherwise would have been a proper question.” Braxton, 226 S.W.3d at 604.

       Either side may challenge a juror for cause when it can show that the juror is incapable or

unfit to serve on the jury. TEX. CODE CRIM. PROC. ANN. art. 35.16. A juror may be challenged

for cause if either side can show “[t]hat the juror has a bias or prejudice in favor of or against the

defendant.” Id. art. 35.16(a)(9). “A challenge for cause is only proper based on bias if a

prospective juror harbors an automatic predisposition toward one view of witness credibility

based upon knowledge of a certain fact about the witness.” Tijerina v. State, 202 S.W.3d 299,

                                                 –4–
302 (Tex. App.—Fort Worth 2006, pet. ref’d) (citing Harris v. State, 122 S.W.3d 871, 880 (Tex.

App.—Fort Worth, 2003, pet. ref’d)). A potential juror may be properly challenged for cause

and removed “if he cannot impartially judge the credibility of a witness.” Ladd v. State, 3

S.W.3d 547, 560 (Tex. Crim. App. 1999). “[J]urors must be open-minded and persuadable, with

no extreme or absolute positions regarding the credibility of any witness.” Id.

       The State agrees with Avila that the prosecutor’s questions were commitment questions.

However, the State argues they were not improper because the questions could lead to a valid

challenge for cause. According to the State, the questioning attempted to discover whether

Prospective Juror “harbored a preexisting bias or prejudice concerning witness credibility.”

       We agree with the State. Avila was charged with indecency with a child younger than 17

years of age. The State could determine whether Prospective Juror could impartially judge a

witness’s credibility, including a child. See Lydia, 117 S.W.3d at 905. The prosecutor originally

asked Prospective Juror about believing a “child”; it was Potential Juror who differentiated

between a “six-year-old child” and a “teenager, high-school.” The prosecutor consistently made

clear in her questions that her reference to a six-year-old child was based on Prospective Juror’s

statement. Her questions were not based on the facts of the underlying case pending against

Avila. We conclude that the prosecutor’s questions sought to elicit whether Potential Juror had

an automatic predisposition to disbelieve a child who was a witness and, thus, would have been a

proper challenge for cause. See Tijerina, 202 S.W.3d at 302; Harris, 122 S.W.3d at 880. The

State’s questions included only those facts necessary to determine whether Prospective Juror was

challengeable for cause. Standefer, 59 S.W.3d at 182; Lydia, 117 S.W.3d at 906. Therefore, the

questions by the State were proper commitment questions and the trial court did not abuse its

discretion by overruling Avila’s objection.




                                               –5–
       Even if the State’s comments constituted an improper commitment question, any error by

the trial court was harmless. We address the potential harm of the State’s alleged improper

commitment question by applying rule 44.2(b). See Sanchez, 165 S.W.3d at 713; TEX. R. APP. P.

44.2(b). We focus “upon whether a biased juror—one who explicitly or implicitly promised to

prejudge some aspect of the case because of the State’s improper questioning—actually sat on

the jury.” See Sanchez, 165 S.W.3d at 713; see also TEX. R. APP. P. 44.2(b). The ultimate harm

question is whether the defendant was tried by an impartial jury, or conversely, whether the jury

or any specific juror was “poisoned” by the State’s improper commitment questions on a legal

issue or fact that was important to the determination of the verdict or sentence. Sanchez, 165

S.W.3d at 713.

       Avila does not argue that the jury was not composed of qualified jurors. See id. After

reviewing the record, we cannot conclude that the jurors who sat on Avila’s jury were not

impartial or were biased. Therefore, any alleged error was harmless. See TEX. R. APP. P.

44.2(b).

       We overrule Avila’s first issue.

       In his second issue, Avila asserts that the judgment should be modified to properly reflect

the offense for which he was convicted. The State agrees. This Court has the authority to

correct the trial court’s judgment to make the record speak the truth when it has the necessary

data and information to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–

28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991,

pet. ref’d). The record reflects that Avila was charged with indecency with a child by contact,

and the jury convicted him of that offense. However, the trial court’s judgment states that Avila

was convicted of “indecency child continuous.”




                                              –6–
       Because the record shows that Avila was charged with and convicted of the offense of

indecency with a child by contact, we sustain Avila’s second issue. We modify the trial court’s

judgment to reflect the proper offense.

       As modified, we affirm the trial court’s judgment.




                                                    /Craig Stoddart/
                                                    CRAIG STODDART
                                                    JUSTICE

Do Not Publish
TEX. R. APP. P. 47
130673F.U05




                                              –7–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

OSCAR AVILA, Appellant                              On Appeal from the 194th Judicial District
                                                    Court, Dallas County, Texas
No. 05-13-00673-CR         V.                       Trial Court Cause No. F-1271796-M.
                                                    Opinion delivered by Justice Stoddart.
THE STATE OF TEXAS, Appellee                        Justices FitzGerald and Fillmore
                                                    participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

       We STRIKE “INDECENCY CHILD CONTINUOUS” as the offense for which
appellant Oscar Avila was convicted. We MODIFY the judgment by adding “INDECENCY
CHILD BY CONTACT” as the offense for which Avila was convicted.

       As modified, the judgment of the trial court is AFFIRMED.


Judgment entered this 30th day of October, 2014.




                                              –8–
