          IN THE COURT OF CRIMINAL APPEALS
                      OF TEXAS
                                     NO. PD-0779-11



                       LADEREK ADARIOUS FULLER, Appellant

                                             v.

                                 THE STATE OF TEXAS



           ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                   FROM THE FIFTH COURT OF APPEALS
                            DALLAS COUNTY

        P RICE, J., delivered the opinion of the Court in which K ELLER, P.J., and
M EYERS, J OHNSON, K EASLER, H ERVEY, C OCHRAN, and A LCALA, JJ., joined. W OMACK,
J., dissented.

                                      OPINION

       Immediately before the voir dire commenced at his trial, the appellant requested that

he be permitted to ask the members of the venire panel whether they understood that the

standard of proof beyond a reasonable doubt constituted a level of confidence under the law

that was higher than both the preponderance of the evidence and the clear and convincing

evidence standards. When the trial court denied his request, the appellant objected that he
                                                                                             Fuller — 2


was thereby denied the right to ask a “proper” question during voir dire, depriving him of the

ability to intelligently exercise challenges for cause and peremptory challenges. This

objection was expressly overruled. We granted the appellant’s petition for discretionary

review in order to address whether the trial court erred in denying the appellant’s request to

propound his question to the venire members. We hold that it did and will reverse.

                          FACTS AND PROCEDURAL POSTURE

        The appellant was indicted for the offense of capital murder, but the State did not seek

the death penalty, and so there was no individual voir dire.1 On the morning that voir dire

was to commence, but before the venire panel was brought into the courtroom, the following

colloquy transpired.

                 THE COURT: Did you want to go on the record about the reasonable
        doubt?

                [DEFENSE COUNSEL]: Judge, I would request that I be allowed to
        ask each and every member of the venire panel if they understand that proof
        beyond a reasonable doubt is the highest burden that we have under the law,
        that it’s higher than clear and convincing evidence. I would like to explain to
        them that clear and convincing evidence is the type of burden that might be
        used when someone is committed to an involuntary health institution or when
        someone is trying to terminate someone’s parental rights.

              I would like to explain to them that it’s higher than – I probably would
        have started at the other end – but higher than the preponderance of the


        1

         See T EX. C ODE C RIM. P ROC. art. 35.17 (except when the accused is charged with a capital
offense for which the State seeks the death penalty, at the direction of the trial court “the state and the
defendant shall conduct the voir dire examination of prospective jurors in the presence of the entire
panel”).
                                                                                  Fuller — 3


       evidence, which is just over 50 percent and that’s the kind of burden that might
       be used in a civil lawsuit when someone is suing over money.

             I would like to ask them if they understand that proof beyond a
       reasonable doubt is the highest burden we have anywhere in our legal system.

              THE COURT: What is the State’s position?

             [THE PROSECUTOR]: Your Honor, I believe you do address
       reasonable doubt within your voir dire and the State is going to accept
       whatever you think is best in your discretion, Judge.

               THE COURT: Okay. Well, I’m going to follow the decision of Paulson
       versus State, drafted by Judge Mike Keasler, where he refers to the Court’s
       opinions prior to the Geesa decision, which he overruled in Paulson, where he
       said that we had said the term had commonly accepted meaning. It’s not
       proper for the Court to discuss what reasonable doubt is. The jury is as
       competent to determine that as the Court. And the opinion concludes like this,
       “We find the better practice is to give no definition of reasonable doubt at all
       to the jury.”

              And my position, [defense counsel], is that you can define something
       affirmatively and negatively and if you say these things that you wish to say,
       then you will be, in essence, defining reasonable doubt and, therefore, I’m
       going to deny your request.

              [DEFENSE COUNSEL]: And we would object to that ruling in that it
       violates the defendant’s right to ask the proper question for purpose of making
       an intelligent challenge for cause and peremptory strike. Under Article 1,
       Section 10, of the Texas Constitution, Article 35.17(2), of the Texas Code of
       Criminal Procedure, the Sixth Amendment and due process clause.

              THE COURT: On those grounds, overruled.

The appellant abided by the trial court’s ruling and made no attempt during voir dire to

question any veniremember about the difference between reasonable doubt and the lesser

standards of proof.
                                                                                    Fuller — 4


       On appeal, however, he complained of the trial court’s ruling. The court of appeals

rejected the appellant’s complaint with the following explanation:

              In the instant case, appellant sought to explain the different burdens of
       proof and to elicit whether the jury understood that proof beyond a reasonable
       doubt is the highest burden. We conclude that such an explanation would not
       seek to elicit information from potential jurors, but only seek to explain the
       burden of proof. Only where there is a denial of a specific question that seeks
       to discover a juror’s views on an issue applicable to the case is there an abuse
       of discretion. See Smith [v. State, 703 S.W.2d 641], at 643 [(Tex. Crim. App.
       1985)].2

In his petition for discretionary review, the appellant argues that the court of appeals ignored

clearly contrary case law from this Court. We granted the appellant’s petition in order to

address this contention.3

                                         ANALYSIS

       In Sells v. State,4 Presiding Judge Keller appropriately encapsulated the state of the

law with respect to the trial court’s management of voir dire as follows:

               The trial court has broad discretion over the process of selecting a jury.
       Without the trial court’s ability to impose reasonable limits, voir dire could go
       on indefinitely. Thus, we leave to the trial court’s discretion the propriety of
       a particular question and will not disturb the trial court’s decision absent an
       abuse of discretion. A trial court abuses its discretion when it prohibits a
       proper question about a proper area of inquiry. A question is proper if it seeks


       2

        Fuller v. State, No. 05-09-01099-CR, 2011 WL 285849, at *6 (Tex. App.—Dallas Jan. 31,
2011) (not designated for publication).
       3

        See T EX. R. A PP. P. 66.3(c).
       4

        121 S.W.3d 748 (Tex. Crim. App. 2003).
                                                                                      Fuller — 5


       to discover a juror’s views on an issue applicable to the case. However, an
       otherwise proper question is impermissible if the question attempts to commit
       the juror to a particular verdict based on particular facts. In addition, a trial
       judge may prohibit as improper a voir dire question that is so vague or broad
       in nature as to constitute a global fishing expedition.5

Albeit without expressly citing Sells, this is the standard that the court of appeals invoked in

this case.6

       In arguing that the court of appeals nonetheless erred to hold that the trial court abused

its discretion, the appellant relies principally upon this Court’s opinion in Woolridge v. State.7

There, in a prosecution for murder, the defendant attempted to ask a prospective juror, in the

presence of the venire panel, about her understanding of the meaning of proof beyond a

reasonable doubt.8 When the trial court sustained the prosecutor’s objection, the defendant

proceeded to contrast the reasonable-doubt standard with the lesser standards of proof “that

they use across the street at the civil courthouse when they decide custody of young children,

when they’re talking about things, objects, money, that sort of thing.”9 He then alluded to

the definition of proof beyond a reasonable doubt that was currently in vogue “over in the


       5

        Id. at 755-56 (marginal citations omitted).
       6

        Fuller, supra, at *5.
       7

        827 S.W.2d 900 (Tex. Crim. App. 1992).
       8

        Id. at 903.
       9

        Id.
                                                                                          Fuller — 6


federal courthouse[,]” namely, “[t]hat degree of certainty which you would rely on without

hesitation in making the most important decisions in our own personal affairs.” 10 When he

next asked one of the prospective jurors whether this federal definition comported with her

own, the trial court again sustained the State’s objection.11 On appeal, the court of appeals

held that it was within the trial court’s discretion to refuse such an inquiry on voir dire.12

       On discretionary review, we reversed the court of appeals.13 Characterizing the issue

before us to be whether a question that addresses the State’s burden of proof of beyond a

reasonable doubt “is a proper question for the purposes of voir dire examination[,]” we

observed that “[t]he State’s burden of proof is an issue applicable to any criminal case

because the fact-finder must apply that standard when determining guilt.”14 From this we

concluded that Woolridge’s question to the veniremember whether her understanding of

proof beyond a reasonable doubt comported with the federal definition “was proper because


       10

        Id.
       11

        Id.
       12

        Id. at 904.
       13

        Id. at 907.
       14

         Id. at 904. A prospective juror who cannot or will not hold the State to the standard of proof
beyond a reasonable doubt to convict in a criminal case is subject to the defendant’s challenge for
cause for harboring “a bias or prejudice against any of the law applicable to the case upon which the
defense is entitled to rely,” under Article 35.16(c)2 of the Code of Criminal Procedure. T EX. C ODE
C RIM. P ROC. art. 35.16(c)2.
                                                                                        Fuller — 7


it sought to discover her views on an issue applicable to [Woolridge’s] trial, was not

repetitious, and was not in an improper form.”15 Our holding was in no way contingent upon

the fact that the law did not provide for a particular definition of proof beyond a reasonable

doubt at the time of Woolridge’s trial, we explained, because

       the fact that no definition will be provided for a term does not render a
       prospective juror’s understanding of that term irrelevant. To the contrary, that
       understanding becomes more crucial to the intelligent exercise of either the
       State’s or the defendant’s peremptory challenges because there is no definition
       to guide what could be a juror’s skewed perception of the term.16

Under the circumstances, we held that the trial court abused its discretion to disallow

Woolridge’s questions seeking to ascertain the veniremember’s understanding of proof

beyond a reasonable doubt.17 We have since reiterated that “[a] trial court abuses its

discretion if it refuses to allow the defendant to voir dire venirepersons about what they think

reasonable doubt means.” 18

       The trial court in this case was apparently of the view that it would have been



       15

        Id. at 906.
       16

        Id.
       17

        Id.
       18

        Goff v. State, 931 S.W.2d 537, 550 (Tex. Crim. App. 1996) (citing Lane v. State, 828 S.W.2d
764, 766 (Tex. Crim. App. 1992). See also Dinkins v. State, 894 S.W.2d 330, 343-45 (Tex. Crim.
App. 1995) (in capital murder voir dire, trial court abused its discretion in failing to permit the
appellant to ask prospective juror whether he could adhere to the definition of reasonable doubt that
was provided under the law at that time, but the error was harmless).
                                                                                   Fuller — 8


improper for the appellant to instruct the venire panel with respect to the relative standards

of proof because the law no longer provides a definition of reasonable doubt. In Geesa v.

State, this Court adopted a definition of proof beyond a reasonable doubt for the first time,

opting for the same federal definition that Woolridge’s trial counsel invoked, namely, that

reasonable doubt “is the kind of doubt that would make a reasonable person hesitate to act

in the most important of his own affairs.”19 Less than ten years later, in Paulson v. State,

however, we entertained second thoughts about the Geesa definition and abandoned it

“because the use of ‘hesitation’ is ambiguous.”20 We found “that the better practice is to give

no definition of reasonable doubt at all to the jury.”21 On the strength of our holding in

Paulson, believing that the appellant’s proposal to contrast reasonable doubt with

preponderance of the evidence and clear and convincing evidence would be tantamount to

defining it for the jury panel, the trial court in this case disallowed it.

       We think this was a mistake. As should be evident from the passage from Woolridge

that we have quoted above, inquiry into a prospective juror’s understanding of what proof

beyond a reasonable doubt means constitutes a proper question regardless of whether the law

specifically defines that term. The jury’s ability to apply the correct standard of proof



       19

        820 S.W.2d 154, 162 (Tex. Crim. App. 1991).
       20

        Paulson v. State, 28 S.W.3d 570, 572 (Tex. Crim. App. 2000).
       21

        Id. at 573.
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remains an issue in every criminal case. If anything, the fact that current case law has come

full circle and once again provides jurors with no definition of reasonable doubt only

heightens the incentive for the parties to test the understanding of the veniremembers. And

it strikes us as particularly apt to inquire whether a prospective juror understands that proof

beyond a reasonable doubt must at least constitute a more onerous standard of proof than

preponderance of the evidence and clear and convincing evidence. It is but the flip side of

the inquiry that prosecutors engage in routinely during voir dire, designed to test whether

prospective jurors will hold the State to the inappropriately onerous standard of proof beyond

all doubt.22 While neither area of inquiry purports to assign a precise meaning to the term

“reasonable doubt”—leaving that for the jurors themselves to supply, according to their own

common-sense understanding of the words—they do serve to set the lawful parameters of

reasonable doubt and thereby foster the selection of jurors who will not impose a standard

of proof upon the State that they know for sure to be either too lenient (preponderance or

even clear and convincing) or too burdensome (all doubt). The trial court erred to conclude

that our opinion in Paulson inferentially invalidated these proper areas of inquiry.

       In its reply brief, the State essentially concedes that any inquiry about a prospective




       22

         See Wilder v. State, 111 S.W.3d 249, 252-53 (Tex. App.—Texarkana 2003, pet. ref’d)
(prosecutor’s explanation to venire panel that proof beyond a reasonable doubt did not mean proof
beyond a “shadow of a doubt” or that “we have to prove it a hundred percent” was permissible and did
not conflict with this Court’s holding in Paulson).
                                                                                          Fuller — 10


juror’s personal understanding of reasonable doubt is proper in the abstract,23 but argues that

the court of appeals was correct to find no abuse of discretion in this case, nevertheless,

because of what amounts to a deficiency in the form of the appellant’s inquiry.24 The court

of appeals erroneously characterized the appellant’s inquiry as no more than “an explanation”

of the contrasting standards of proof, without any specific attempt to gauge the ability of the

prospective jurors to recognize and apply the correct standard.25 “Only where there is a

denial of a specific question that seeks to discover a juror’s views on an issue applicable to

the case,” the court of appeals held, “is there an abuse of discretion.”26 In this regard, it is

the court of appeals, rather than the trial court, that has made a mistake.

        23

        State’s Brief at 8 (“If, in the present case, the defense had proposed to question the venire on
their understanding of ‘proof beyond a reasonable doubt’ as Appellant now asserts, such questioning
would have been proper.”)
        24

         Id. (“The questions actually proposed by defense counsel in the present case, however, was
whether panel members understood that ‘beyond a reasonable doubt’ was the highest burden in the
legal system. That question did not seek to elicit from the prospective jurors their personal views.
Rather, the question was part of a proposed explanation comparing the beyond a reasonable doubt
burden to the burdens of proof of ‘preponderance of the evidence’ and ‘clear and convincing evidence’
and sought only to affirm that the panel members understood that beyond a reasonable doubt was the
highest burden.”).
        25

        Fuller, supra, at *6.
        26

         Id. For this proposition, the court of appeals cited this Court’s opinion in Smith v. State, 703
S.W.2d 641 (Tex. Crim. App. 1985). On page 645 of our Smith opinion, we held that it was within
a trial court’s discretion to disallow a query into prospective jurors’ “thoughts” about the insanity
defense, in the interest of time limitations, because it “presents so broad a question as to constitute a
global fishing expedition.” Id. at 625. This proposition seems at least analogous to the proposition
that the court of appeals cited Smith for. We do not think the appellant proposed to ask a similarly
broad question, as we explain post.
                                                                                       Fuller — 11


       Granted, we have often said that a trial court has discretion to prohibit an otherwise-

proper area of inquiry if the proposed questions are “so vague or broad in nature as to

constitute a global fishing expedition[.]”27 But that principle does not apply here. It was

appropriate for the appellant to explain the contrast among the various standards of proof in

this case. That explanation was a necessary lead-in to the question that the appellant twice

mentioned to the trial court that he would like to ask the prospective jurors: “I would like to

ask them if they understand that proof beyond a reasonable doubt is the highest burden that

we have anywhere in our legal system.” A juror who does not understand this concept may

prove unable to abide by it, and a juror who cannot abide by it cannot follow the law and

would thus be challengeable for cause under Article 35.16(c)2. Although the appellant did

not go on to expressly propose asking the veniremembers specifically whether they could

follow the law by regarding the reasonable doubt standard as the highest standard recognized

under the law, the question he did propose was sufficiently specific that it cannot fairly be

characterized as inciting a “global fishing expedition.” The appellant clearly proffered a

question that was at least relevant to, if not altogether dispositive of, a legitimate defensive

challenge for cause.28 Because the objection he made to the trial court’s ruling embraced a


       27

        Woods v. State, 152 S.W.3d 105, 108 (Tex. Crim. App. 2004) (citing Sells, supra, at 756, and
Barajas v. State, 93 S.W.3d 36, 39 (Tex. Crim. App. 2002), the latter of which, in turn, cites Smith,
supra, at 645 (not 643)).
       28

        The State argues that “[p]rospective jurors may form their own definitions of proof beyond
a reasonable doubt and they are not challengeable for cause based upon the type of and amount of
                                                                                             Fuller — 12


complaint that he was denied the right to ask a question that was “proper . . . for purpose of

making [a] . . . challenge for cause,” and the trial court expressly overruled that objection,

we hold that the trial court abused its discretion. Accordingly, we reverse the judgment of

the court of appeals.

                                           CONCLUSION

        The State contends that error in denying the appellant the ability to ask a proper

question was harmless on the particular facts of this case. This type of error is indeed subject

to a harm analysis,29 but the appellant has not briefed this question, and the State does not

convince us that the error is so plainly harmless that we should conduct that review for the

first time on discretionary review in the interest of judicial economy.30 Therefore, we remand


evidence they require to reach that level of confidence. Murphy v. State, 112 S.W.3d 592, 598 (Tex.
Crim. App. 2003).” State’s Brief at 12-13. True enough, but beside the point. While a prospective
juror is not challengeable for cause for implementing his own personal threshold of reasonable doubt
that is within the permissible range of understanding of that term, see Murphy, supra, at 597-98, and
cases discussed therein, he would be challengeable for cause if he insisted on equating proof beyond
a reasonable doubt with either preponderance of the evidence or clear and convincing evidence—just
as he would be manifestly challengeable for cause if he insisted on understanding proof beyond a
reasonable doubt to mean proof beyond all conceivable doubt. See Cook v. State, 858 S.W.2d 467,
471 (Tex. Crim. App. 1993) (quoting Jacobs v. State, 787 S.W.2d 397, 404 (Tex. Crim. App. 1990),
to the effect that “[i]f a prospective juror manifests an intention to hold the State to a stricter standard
of proof than that of beyond a reasonable doubt, then that juror is subject to a challenge for cause under
Article 35.16(b)(3), V.A.C.C.P.”); George E. Dix & John M. Schmolesky, 43 T EXAS P RACTICE:
C RIMINAL P RACTICE AND P ROCEDURE § 41:66, at 726 (3rd ed. 2011) (“A panelist who states in a capital
murder case that he or she would require proof beyond all doubt or to the point where there is ‘no
shadow of a doubt’ is challengeable for cause.”).
        29

        Rich v. State, 160 S.W.3d 575, 577 (Tex. Crim. App. 2005); Jones v. State, 223 S.W.3d 379
(Tex. Crim. App. 2007).
        30

        See Johnston v. State, 145 S.W.3d 215, 224 (Tex. Crim. App. 2004) (“Normally, having found
                                                                                          Fuller — 13


the cause to the court of appeals to conduct a harm analysis in the first instance. On remand,

the court of appeals may entertain additional briefing on the issue of harm, vel non, at its

discretion.




DELIVERED:              March 28, 2012
PUBLISH




that the court of appeals erred in upholding the admission of this evidence, we would remand the case
to that court to conduct a harmless error review. However, in this case, the State argues, and we agree,
that any error is so plainly harmless that we should resolve that issue for the sake of judicial
economy.”); McDonald v. State, 179 S.W.3d 571, 579-80 (Tex. Crim. App. 2005) (Cochran, J.,
concurring) (“Normally, . . . [w]e defer to the intermediate court and provide it with the initial
opportunity to assess the degree of harm in light of the entire record, and, perhaps more importantly,
to provide the parties an opportunity to fully brief the issue of harm. * * * [W]e . . . rarely exercise
our authority to make an initial harmless error review.”).
