                                 NUMBER 13-11-00442-CR

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

DAVID SAMARIPAS JR.,                                                                    Appellant,

                                                   v.

THE STATE OF TEXAS,                                                                     Appellee.


                      On appeal from the 272nd District Court
                            of Brazos County, Texas.


                MEMORANDUM OPINION ON REMAND1
              Before Justices Rodriguez, Benavides, and Perkes
             Memorandum Opinion on Remand by Justice Perkes

        This case is on remand from the Texas Court of Criminal Appeals. On original

submission, we affirmed appellant David Samaripas Jr.’s conviction for engaging in



        1This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to a
docket equalization order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001
(West, Westlaw through 2013 3d C.S.).
organized criminal activity. Samaripas v. State, 446 S.W.3d 1, 3 (Tex. App.—Corpus

Christi 2013), rev’d, No. PD-135-13, 2014 WL 5247434, *5 (Tex. Crim. App. Oct. 15,

2014).       On appeal, appellant asserted four separate issues:                     (1) the evidence is

insufficient; (2) the trial court abused its discretion by limiting appellant's voir dire

examination of a prospective juror2; (3) the trial court erred by instructing the jury on the

law of parties; and (4) appellant’s sentence was improperly enhanced. After we affirmed

the trial court’s judgment, appellant sought discretionary review.

         The Court of Criminal Appeals limited its consideration to appellant’s voir dire and

enhancement issues. The Court agreed with our disposition of appellant’s enhancement

issue, holding that appellant’s sentence was properly enhanced. The Court, however,

reversed on appellant’s voir dire issue, holding that appellant preserved error for review,

and remanded the issue to this Court for consideration of the merits of that issue.

Samaripas, 2014 WL 5247434, at *5.

                                            I. JURY VOIR DIRE3

         By this remaining issue, appellant argues that “the trial court abused its discretion

by improperly limiting [appellant’s] voir dire examination of a prospective juror.” Appellant

contends that the trial court disallowed a proper question, and by refusing to allow counsel

to ask the question, his counsel was denied the opportunity to formulate a challenge for

cause and to intelligently use peremptory challenges.




         With respect to appellant’s first issue, we opined that appellant failed to preserve his appellate
         2

complaint for review on appeal.

        3 A full recitation of the facts is available in our earlier opinion. See Samaripas v. State, 446 S.W.3d

1, 3 (Tex. App.—Corpus Christi 2013), rev’d, No. PD-135-13, 2014 WL 5247434, *5 (Tex. Crim. App. Oct.
15, 2014). On remand, we are only providing the facts necessary for the disposition of the remanded issue.
                                                       2
       During voir dire, appellant’s counsel advanced the following question: “What type

of evidence would you expect to hear? What type of evidence do you expect the State

of Texas to bring you, Ms. O’Neal, in an effort to prove to you beyond a reasonable doubt

that someone committed an offense?” The State objected on the ground that the question

was an improper commitment question, and the trial court sustained the objection.

Defense counsel continued with voir dire as follows:

       DEFENSE:             [Directed to venireperson] In that class three years
                            ago, you probably learned there’s no definition
                            provided by the court to “beyond a reasonable doubt”;
                            is that right?

       VENIREPERSON: Right. We had a long discussion about it.

       DEFENSE:             And did that make sense to you?

       VENIREPERSON: It can be fuzzy.

       DEFENSE:             It can be fuzzy. In order to convince somebody beyond
                            a reasonable doubt—I’ll come back to you,
                            [venireperson]. What type of evidence would you
                            expect the State of Texas to bring to you in order to
                            convince you that somebody committed an offense
                            beyond a reasonable doubt?

The State objected, and the trial court called the parties to the bench.

       COURT:               I think he is entitled to say what is your understanding
                            of reasonable doubt, as long as he doesn’t give them a
                            definition they have to adhere to.

       STATE:               But if he’s saying what [evidence] do you need for you
                            to get to guilty?

The trial court sustained the State’s objection. Appellant’s counsel rephrased.

       DEFENSE:             What type of evidence would you expect to hear?
                            What type of evidence do you expect the State of
                            Texas to bring you, [venireperson], in an effort to prove

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                             to you beyond a reasonable doubt that someone
                             committed an offense?

Again, the State objected, and the trial court called the parties to the bench.

       STATE:                Same question: “What do you expect?”

       COURT:                You’re going to bind them to a certain level of evidence.

       DEFENSE:              Just asking them what do they expect the State of
                             Texas to bring them evidence wise.

       COURT:                I don’t have a problem with that question. Ask it that
                             way. Sustained.

       STATE:                But to prove somebody guilty at that point in time, that’s
                             why.

       COURT:                I can’t let them get committed to a certain proof in order
                             to find somebody.

       DEFENSE:              I’m understanding that.

       COURT:                I sustain the objection.

[End of bench conference.]

       DEFENSE:              In a criminal case, [venireperson], what type of
                             evidence would you expect to hear period?

       VENIREPERSON: Factual.

       DEFENSE:              Factual evidence.     What type of factual evidence,
                             [venireperson]?

       VENIREPERSON: Good. Well, maybe some eyewitnesses.

       DEFENSE:              Eyewitnesses. Okay, what else? Now, we’re talking
                             about engaging in organized criminal activity deadly
                             conduct charge. What are you expecting?

       VENIREPERSON: Physical evidence.

       DEFENSE:              Physical evidence. Number 23, what type of evidence
                             would you expect?
                                              4
      VENIREPERSON: Gun.

      DEFENSE:         A gun. Okay.

      VENIREPERSON: If that was the case.

      DEFENSE:         What else? What other type of evidence could we
                       have, factual physical evidence? A gun. What else
                       might you expect?

      VENIREPERSON: Eyewitness.

      VENIREPERSON: Expert testimony.

      DEFENSE:         Expert testimony. On what?

      STATE:           Judge, I’m sorry. We’re going back to the same thing.
                       Essentially saying here’s what we need to prove to get
                       to beyond a reasonable doubt.

      DEFENSE:         That’s not my question, Judge.

      COURT:           Come up here again.

[Bench conference]

      STATE:           I keep objecting because he’s trying the same exact
                       [sic]. He’s saying what kind of evidence, factual
                       evidence—

      COURT:           Make clear to them in your question that your question
                       is predicated that they’re many different kinds of
                       evidence some of it which you can hear, some of which
                       you cannot hear. In other words, what you’re doing
                       now, again, is binding them to hear certain evidence
                       before they can say guilty.

      DEFENSE:         I respectfully disagree, your Honor. I’m just asking
                       them their expectations for trial.

      COURT:           Well, phrase it clearly that these may or may not be
                       necessary to find reasonable doubt, please.

      DEFENSE:         Yes, sir.
                                       5
       COURT:                Then you can ask it.

[End of bench conference.]

       DEFENSE:              Understanding that these items of evidence that we’re
                             talking about here may or may not create reasonable
                             doubt, may or may not convince you beyond a
                             reasonable doubt—okay, we talked about physical
                             evidence; we talked about guns; we talked about—we
                             were at expert testimony. Who said that?

                       II. STANDARD OF REVIEW AND APPLICABLE LAW

       A trial court has broad discretion over the voir dire process, including setting

reasonable limits and determining the propriety of a particular question. Barajas v. State,

93 S.W.3d 36, 38 (Tex. Crim. App. 2002) (en banc). “A trial court’s discretion is abused

only when a proper question about a proper area of inquiry is prohibited. A question is

proper if it seeks to discover a juror’s views on an issue applicable to the case.” Id.

(citations omitted).

       Commitment questions that “bind or commit a prospective juror to a verdict based

on a hypothetical set of facts” exceed the proper area of inquiry, and a trial court does not

abuse its discretion in disallowing the questions. See 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) (en banc)). “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.”

Id. “Although commitment questions are generally phrased to elicit a ‘yes’ or ‘no’ answer,

an open-ended question can be a commitment question if the question asks the

prospective juror to set the hypothetical parameters for his decision-making.” Id. at 180

(citing Allridge, 850 S.W.2d at 480).
                                               6
        But, not all commitment questions are improper. “[F]or a commitment question to

be proper, one of the possible answers to that question must give rise to a valid challenge

for cause.”4     Id. at 182.     For instance, “[w]hen 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.” Id. at 181. “Even if a question meets this challenge for

cause requirement, however, the question may nevertheless be improper if [the question]

includes facts in addition to those necessary to establish a challenge for cause.”

Standefer, 59 S.W.3d at 182 (emphasis in original).

        The inquiry for improper commitment questions has two steps: (1) is the question

a commitment question; and (2) does the question include facts—and only those facts—

that lead to a valid challenge for cause? If the answer to (1) is “yes” and the answer to

(2) is “no,” then the question is an improper commitment question, and the trial court

should not allow the question. Id. at 182–83.

        Upon holding a trial court erred in disallowing a proper question, we must evaluate

for harm. “There may be instances when a judge’s limitation on voir dire is so substantial

as to warrant labeling the error as constitutional error subject to a Rule 44.2(a) [of the

Texas Rules of Appellate Procedure] harm analysis.” Easley v. State, 424 S.W.3d 535,

541 (Tex. Crim. App. 2014). But when an attorney is not “foreclosed from explaining the

concept of beyond a reasonable doubt and exploring the venire members’ understanding

and beliefs of reasonable doubt by other methods” or questions, the error is not



          4 Texas Code of Criminal Procedure article 35.16 lists the challenges for cause. See TEX. CODE

CRIM. PROC. ANN. art. 35.16(a) (West, Westlaw through 2013 3d C.S.) (providing that “[a] challenge for
cause is an objection made to a particular juror, alleging some fact which renders the juror incapable or
unfit to serve on the jury”).
                                                   7
constitutional, and we review for harm under Texas Rule of Appellate Procedure 44.2(b).

Easley, 424 S.W.3d at 541.         Under that standard, we disregard any “error, defect,

irregularity, or variance that does not affect substantial rights . . . .” TEX. R. APP. P. 44.2(b);

Easley, 424 S.W.3d at 541–42. “A substantial right is affected when the error has a

substantial and injurious effect or influence in determining the jury’s verdict.” Rich v.

State, 160 S.W.3d 575, 577 (Tex. Crim. App. 2005) (quotation omitted). In assessing

harm, we review:

       everything in the record, including any testimony or physical evidence
       admitted for the jury’s consideration, the nature of the evidence supporting
       the verdict, the character of the alleged error and how it might be considered
       in connection with other evidence in the case, the jury instructions, the
       State’s theory and any defensive theories, closing arguments, voir dire, and
       whether the State emphasized the error.

Id. at 577–78; see Easley, 424 S.W.3d at 542.

                                         III. DISCUSSION

       A. Exclusion of Voir Dire Question

       Appellant asserts the trial court abused its discretion by limiting appellant's voir

dire examination of a prospective juror. Defense counsel asked: “What type of evidence

would you expect to hear? What type of evidence do you expect the State of Texas to

bring you, Ms. O’Neal, in an effort to prove to you beyond a reasonable doubt that

someone committed an offense?”

       In context, defense counsel’s question was a commitment question because it

solicited the prospective jurors to set hypothetical parameters for their decision-making.

See Standefer, 59 S.W.3d at 180. In other words, the question committed a prospective

juror to a verdict based on a hypothetical set of facts.            Unlike typical commitment

                                                8
questions, which are generally closed-ended questions, the type of open-ended

commitment question in this case begins with the answer—yes or no (i.e., conviction or

acquittal)—and asks the prospective jurors to set the parameters to reaching that answer.

See id. Most specifically, defense counsel was addressing the State’s burden of proof to

convict, and the question invited the prospective jurors to detail hypothetical prerequisites

to reaching that result, despite the fact that the State may not, and need not, present such

evidentiary parameters to satisfy its burden. See id. For example, a conviction may be

based on the testimony of a single eyewitness, in which case the State need not present

DNA evidence, a weapon, or expert testimony. See, e.g., Aguilar v. State, 468 S.W.2d

75, 77 (Tex. Crim. App. 1971). Recognizing that, the trial court requested defense

counsel to rephrase the question to avoid binding the prospective jurors to a type of

evidence as a prerequisite for conviction.

       Having determined that defense counsel’s question was a commitment question,

we now turn to whether the question included facts that would lead to a valid challenge

for cause. See TEX. CODE CRIM. PROC. ANN. art. 35.16 (West, Westlaw through 2013 3d

C.S.). The principle of proof beyond a reasonable doubt is crucial, and it is a proper area

of inquiry. But defense counsel’s commitment question explored more than whether the

prospective jurors understood the burden or whether they could follow the law. As a

parameters-setting commitment question, it was not designed to uncover a valid

challenge for cause. See Standefer, 59 S.W.3d at 182 (holding that commitment question

is improper unless one of the possible answers gives rise to a valid challenge for cause).

Because the commitment question did not target a challenge for cause, defense counsel’s

voir dire question was improper. See Standefer, 59 S.W.3d at 182. We conclude that
                                             9
the trial court did not abuse its discretion in sustaining the State’s objection and requesting

defense counsel to rephrase the question. See id.

       B. Harmless Error

       Even assuming the question was not a commitment question or could give rise to

a challenge for cause, any error in restricting the question was harmless. Although the

trial court required defense counsel to rephrase the question, appellant was not

foreclosed from explaining the State’s burden or exploring the prospective jurors’

understanding of and beliefs relating to it through other questions. Accordingly, we review

for non-constitutional error, see Easley, 424 S.W.3d at 541–42, and we disregard any

error in excluding the question unless it had a substantial and injurious effect or influence

on the jury’s verdict.   See TEX. R. APP. P. 44.2(b); Rich, 160 S.W.3d at 577 (defining

“substantial rights”).

       The evidence showing appellant perpetrated the drive-by shooting with the intent

to establish, maintain, or participate in a criminal street gang was substantial. See, e.g.,

Hart v. State, 89 S.W.3d 61, 63–64 (Tex. Crim. App. 2002) (en banc) (defining the offense

of engaging in organized criminal activity). Officers testified that appellant belonged to a

gang. One detective read a statement from appellant in which he referred to the gang as

“us” and that gang’s rival as “them.” Earlier on the night of the shooting, a member of

appellant’s gang shot four members of the rival gang. Later that night, a black car was

involved in shooting another member of the rival gang. A member of that rival gang had

shot someone in appellant’s gang a few days earlier, and the rival member lived at the

house where the drive-by shooting occurred. About one month earlier, the rival member

shot appellant. As a result of the shooting, appellant needed a colostomy bag. Police
                                              10
found the gun used to shoot at the rival member’s residence in appellant’s colostomy bag,

which had been thrown from the front passenger seat of the vehicle, which is where

appellant sat. A witness testified that a black car was involved in the drive-by shooting.

Overall, the testimony and physical evidence against appellant was strong.

       Although prevented from asking the question in the manner defense counsel

preferred, the trial court did not prevent appellant’s defense counsel from exploring the

prospective jurors’ understanding of the beyond-a-reasonable-doubt standard through

other questions. The jury charge explained the State’s burden, and there is no evidence

any juror misunderstood the State’s burden. The State did not emphasize the foreclosed

hypotheticals. In sum, upon considering the entire record, we conclude any error in

precluding defense counsel’s question was harmless. See Rich, 160 S.W.3d at 577; see

also TEX. R. APP. P. 44.2(b); Easley, 424 S.W.3d at 542.

       We overrule appellant’s sole issue on remand.

                                     IV. CONCLUSION

       We affirm the trial court’s judgment.




                                                    GREGORY T. PERKES
                                                    Justice

Do Not Publish
TEX. R. APP. P. 47.2 (b)

Delivered and filed the
30th day of April, 2015.




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