                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-10-00061-CR

RONNIE JOE DANIEL,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee


                          From the 85th District Court
                              Brazos County, Texas
                        Trial Court No. 07-02135-CRF-85


                          MEMORANDUM OPINION


      Ronnie Joe Daniel was convicted of the offense of Sexual Assault of a Child. TEX.

PENAL CODE ANN. § 22.011 (West Pamp. 2010). After the jury found an enhancement

paragraph of a prior aggravated sexual assault conviction to be true, Daniel was

sentenced to life in prison. Because a question asked of the prospective jury panel was

not a commitment question and because Daniel’s complaint about the exclusion of

evidence was not preserved for appeal, the trial court’s judgment is affirmed.
                                        BACKGROUND

        Around Christmas of 2005, Daniel and S.M. met and started a relationship. In

November of 2006, the two had sex. S.M. was 16 years old at the time and Daniel was

37 years old. S.M became pregnant and had a baby in August of 2007. S.M. was 17 at

the time the baby was born. DNA testing confirmed that Daniel was the father of the

baby.

                                  COMMITMENT QUESTION

        In his first issue, Daniel asserts that the trial court erred in permitting the State to

ask an improper commitment question during jury selection.1 The question at issue

here was introduced by an interrupted series of statements.

        State: Another scenario: 40-year-old man, 16-year-old girl; they’ve known
        each other for years; find themselves together alone and one thing just
        leads to another.

        Defense: Judge, again, I would object at this point. This is an improper
        commitment question under Standefer.

        State: I haven’t asked a question.

        Court: Go ahead. Ask the question. Then if you have an objection, let me
        know what it is.

        State: And let’s say that the man knows the girl just got her driver’s
        license. Now, one thing lead to another [-] they had sex. Would that be a
        sexual assault of a child?

        Defense: At this point I object under Standefer.           That’s an improper
        commitment question.

        Court: Okay. I’ll overrule the objection. You may ask that question.


1Daniel objected to another question as a commitment question but he does not complain about that
question on appeal.

Daniel v. State                                                                           Page 2
        State: That second scenario, wouldn’t that be a sexual assault of a child?

        Jury Panel: Yes.

        The first step in our review is to determine whether this question was a

commitment question. Daniel argues that it was. Commitment questions are those

questions that commit a prospective juror to resolve, or to refrain from resolving, an

issue a certain way after learning a particular fact. Standefer v. State, 59 S.W.3d 177, 179

(Tex. Crim. App. 2001). The purpose for prohibiting improper commitment questions

by either the State or the defendant is 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 v. State, 165 S.W.3d 707, 712 (Tex. Crim. App.

2005). Commitment questions require a prospective juror 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. Id. 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. Id.

        But not all commitment questions are improper. For a commitment question to

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

challenge for cause and must contain only those facts necessary to test whether a

prospective juror is challengeable for cause. Standefer, 59 S.W.3d at 182. An improper

commitment question attempts to create a bias or prejudice in the prospective juror

before he has heard the evidence, whereas a proper voir dire question attempts to


Daniel v. State                                                                       Page 3
discover a prospective juror's preexisting bias or prejudice. Sanchez v. State, 165 S.W.3d

707, 712 (Tex. Crim. App. 2005)

        When comparing the question in this case to questions that have been held to be

commitment questions, we do not consider it to be a commitment question. It does not

ask the panel to resolve or refrain from resolving an issue in the case on the basis of one

or more facts contained in the question. The State was not asking the panel if they

could convict based on certain facts, like the questions in Atkins or Standefer. See Atkins

v. State, 951 S.W.2d 787, 789 (Tex. Crim. App. 1997) ("If the evidence, in a hypothetical

case, showed that a person was arrested and they had a crack pipe in their pocket, and

they had a residue amount in it, and it could be measured, and it could be seen, is there

anyone who could not convict a person, based on that."); Standefer v. State, 59 S.W.3d

177, 179 (Tex. Crim. App. 2001) ("Would you presume someone guilty if he or she

refused a breath test on their refusal alone?"). What the State was doing here is more

akin to what Courts have found not to be commitment questions. See Halprin v. State,

170 S.W.3d 111 (Tex. Crim. App. 2005); Berkley v. State, No. AP-74,336, 2005 Tex. Crim.

App. Unpub. LEXIS 394 (Tex. Crim. App. April 6, 2005) (not designated for

publication); Zuniga v. State, Nos. 14-06-00405-CR, 14-06-00406-CR, 2007 Tex. App.

LEXIS 4552 (Tex. App.—Houston [14th Dist.] June 12, 2007, pet. ref’d) (mem. op.).

        In Halprin, the appellant complained that many hypotheticals posed by the State

to illustrate the variations of the offense of murder were improper commitment

questions. The Court of Criminal Appeals held that, for the issues that were preserved,

the hypotheticals were not commitment questions because they did not attempt to bind

Daniel v. State                                                                      Page 4
the prospective juror to resolve or refrain from resolving an issue, in that case the

minimum punishment for an intentional murder, on the basis of one or more facts

contained in the questions. Halprin, 170 S.W.3d at 118-121.

        In Berkley, the appellant complained about hypothetical scenarios which the state

posed to prospective jurors involving death as a result of mercy killing, domestic

violence, and bullying. The appellant claimed both at trial and on appeal that the

hypotheticals improperly committed and contracted with prospective jurors.               The

appellant complained that the State followed up in each hypothetical with the broad

question whether the prospective juror could conceive a scenario in which he or she

could consider probation which, in essence, asked the prospective jurors whether they

could consider probation for a mercy killing or when the victim was of an “unpalatable

character." The Court of Criminal Appeals held:

        It appears to us that, in using those hypotheticals, the prosecutor was not
        asking prospective jurors to resolve, or to refrain from resolving, any issue
        in any certain way after learning of a particular fact, and thus was not
        asking a commitment question, prohibited or otherwise. Rather, the
        prosecutor was presenting possible scenarios to facilitate inquiry into the
        prospective juror's views regarding punishment. Because the challenged
        inquiries were not improper commitment questions, we conclude that the
        trial court did not err in overruling appellant's objections thereto.

Berkley, 2005 Tex. Crim. App. Unpub. LEXIS 394 at *4-5.

        In Zuniga, the trial court began the voir dire of the prospective jurors. Because

the defendant elected to have the jury assess his punishment, the trial court

summarized the range of punishment for the defendant’s offenses. The trial court also

gave differing fact scenarios of the same offense to illustrate to the panel that under


Daniel v. State                                                                         Page 5
both scenarios, the law had been violated but that the jury might consider both

scenarios differently to determine the appropriate punishment. When the trial court

then asked whether the members of the panel could consider the full range of

punishment, the defendant objected, stating that the court was qualifying the panel on a

specific set of facts and that the scenarios made it easier for the panel to commit to

considering probation in a proper case. The objection was overruled. On appeal, the

appellant complained that the trial court improperly committed the panel to specific

fact scenarios which tended to bias or influence the jury toward a particular type of

crime related to the offense with which he was charged. The appellate court held that

“[b]ecause the trial judge did not attempt to bind the venire members to resolve or

refrain from resolving an issue on the basis of one or more of the facts contained in her

examples, her questioning of the panel was proper.” Zuniga, 2007 Tex. App. LEXIS 4552

at *6.

         Prior to the question at issue in this case, the State had been educating the

prospective jury panel on the law of sexual assault of a child. At least one panel

member was having difficulty following the law where the victim was 16 years old.

Another did not know whether she would consider the facts of a less egregious sexual

assault in punishment or in guilt/innocence. To further assist the prospective jurors,

the State gave them different fact scenarios to illustrate the law. After one fact scenario,

the State asked a similar question, “Has a sexual assault as the law’s [sic] written been

committed,” without objection. Then, after the second scenario detailed above and

objection, the State went on to explain,

Daniel v. State                                                                       Page 6
        What I’m trying to illustrate by the two different examples are you’re
        going to have different fact scenarios and we’ve talked about some, but
        you’re going to have different fact scenarios and don’t know what the
        facts are. But you might look differently at that second scenario than the
        first scenario, you might treat them differently in punishment. But they’re
        both, under the law, sexual assault of a child as it’s written. Does
        everyone see how those facts fit in with the law as it’s written?

Further, the voir dire record reflects that the State explained several times to the

prospective jury panel that they did not, at that time, know the facts of the case.

        After reviewing this record and in light of the relevant case law, we find that the

question asked by the State is not a commitment question.                      Because it was not a

commitment question, the trial court did not err in overruling Daniel’s objection.

        Daniel’s first issue is overruled.

                                      EXCLUSION OF EVIDENCE2

        In his second issue, Daniel contends the trial court erred in excluding evidence of

the presence of an additional witness during the offense.                      The crux of Daniel’s

complaint on appeal is that the exclusion of this evidence deprived him of the ability to

present a potential fact witness. The State asserts that Daniel has not preserved this

issue for review. We agree with the State.

        At trial, Daniel wanted to ask S.M. about whether her two-year-old son was

present during all encounters with Daniel, including the time of the sexual assault. The

State argued that evidence of another child by S.M. was inadmissible under Rule 412 of

2The issue is multifarious and could be overruled on that basis alone. Mays v. State, 318 S.W.3d 368, 385
(Tex. Crim. App. 2010); Wood v. State, 18 S.W.3d 642, 649 n.6 (Tex. Crim. App. 2000). Further, primarily
due to the multifarious nature thereof, it is difficult for us to align the purported evidence that was not
admitted with an offer of that evidence, the related objection or basis for exclusion of the evidence, and
the trial court’s ruling excluding the evidence. We will, however, address the fundamental complaints as
we understand them.

Daniel v. State                                                                                     Page 7
the Texas Rules of Evidence because it was necessarily evidence of S.M.’s prior sexual

activity.   Daniel claimed in response that the child was a fact witness and whose

presence was a means to attack S.M.’s credibility. At a hearing outside the presence of

the jury, Daniel questioned S.M. about the presence of her child during her encounters

with Daniel. Daniel did not, however, present the child for questioning and did not

present any kind of summary as to what the child’s testimony, or even what the

relevance of the child’s testimony, would be. After the hearing, the trial court agreed

with the State and excluded the evidence.

        In order to preserve error regarding a trial court's decision to exclude evidence,

the complaining party must comply with Rule of Evidence 103 by making an "offer of

proof" which sets forth the substance of the proffered evidence. TEX. R. EVID. 103(a)(2);

Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009). The offer of proof may

consist of a concise statement by counsel, or it may be in question-and-answer form.

Mays, 285 S.W.3d at 889; Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998). If in

the form of a statement, the proffer "must include a reasonably specific summary of the

evidence offered and must state the relevance of the evidence unless the relevance is

apparent, so that the court can determine whether the evidence is relevant and

admissible." Mays, 285 S.W.3d at 890 (quoting Warner, 969 S.W.2d at 2). The primary

purpose of an offer of proof is to enable an appellate court to determine whether the

exclusion was erroneous and harmful. Mays, 285 S.W.3d at 890 (citing Steven Goode,

Olin Guy Wellborn III & M. Michael Sharlot, 1 Texas Practice - Guide to the Texas Rules

of Evidence: Civil and Criminal § 103.3 (1993)).

Daniel v. State                                                                     Page 8
        On appeal, Daniel is trying to argue that because he was prevented from

obtaining testimony from S.M. about the presence of S.M.’s child when S.M. was

sexually assaulted, the extent of his cross-examination of S.M. was improperly limited.

He argues further that this limitation on cross-examination had the effect of Daniel

being unable to impeach S.M.’s credibility with the testimony of a third party witness

present during the assault. We note that the presence of S.M.’s child, as such, during

the assault is uncontroverted. The mere presence of S.M.’s child was not, however,

relevant to the commission of the assault. If S.M.’s child had the capacity to testify,

which we assume absent evidence to the contrary, Broussard v. State, 910 S.W.2d 952, 960

(Tex. Crim. App. 1995); Rodriguez v. State, ___ S.W.3d ___, 2011 Tex. App. LEXIS 834

(Tex. App.—Waco Feb. 2, 2011, no pet. h.), the nature of the child’s testimony was never

presented in any form. Daniel never tried to call S.M.’s child as a witness. To the extent

Daniel wanted to establish that the third person present during the assault was S.M.’s

child, that issue is irrelevant. But to the extent that Daniel complains he was deprived

of the child’s testimony, that issue was not preserved.

        Without an offer of proof as to the substance of the child’s testimony, we cannot

determine from this record why the child would be a fact witness or why the child’s

presence at the time of the assault would be a proper means to attack S.M.’s credibility.

Accordingly, Daniel did not preserve his complaint for appeal, and his second issue is

overruled.3



3 Further, we cannot conclude on this record that the trial court abused its discretion by excluding S.M.’s
testimony about the presence of her child during her encounters with Daniel.

Daniel v. State                                                                                     Page 9
                                    CONCLUSION

        Having overruled both issues presented on appeal, we affirm the judgment of

the trial court.


                                       TOM GRAY
                                       Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed March 16, 2011
Do not publish
[CRPM]




Daniel v. State                                                              Page 10
