                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                         No. 07-18-00261-CR


                              YVONNE GONZALES, APPELLANT

                                                  V.

                               THE STATE OF TEXAS, APPELLEE

                             On Appeal from the 140th District Court
                                      Lubbock County, Texas
                Trial Court No. 2016-408,821, Honorable Jim Bob Darnell, Presiding

                                       December 19, 2019

                                 MEMORANDUM OPINION
                        Before QUINN, C.J., and PIRTLE and PARKER, JJ.


       In May of 2018, appellant, Yvonne Gonzales, pleaded guilty to the murder of four-

year-old Alyrah Sanchez.1 A jury assessed punishment at ninety-nine years’ confinement

in the Texas Department of Criminal Justice. In this appeal, appellant contends that the

trial court impermissibly restricted her voir dire regarding the age of the victim. We affirm

the trial court’s judgment.




       1   See TEX. PENAL CODE ANN. § 19.02(b)(2) (West 2019).
                                             Background


        Following appellant’s open plea of guilty, the trial proceeded on punishment only.

The State urged an oral motion in limine regarding references to the age of the victim.

The trial court granted the motion over appellant’s objection, explaining, “You’re not ever

allowed to go into the facts of the case other than what’s set forth in the indictment in jury

selection.”


        Before appellant began voir dire, the trial court held a hearing outside the presence

of the panel regarding its ruling on the motion in limine. Appellant’s counsel asserted that

the trial court’s denial of the opportunity to bring up the victim’s age prevented him from

determining whether prospective jurors would be able to consider the full range of

punishment if the crime involved a child victim.2 Counsel argued that he should be

allowed to mention the victim’s age or at least the more generic “young child” or “child,”

as shown in the following exchange:


        COUNSEL: My argument would be on this, Judge, that it’s – hamstringing
        me to put on an effective defense for my client under the [Sixth] Amendment
        to the Constitution because I am – by the Court’s ruling I am not allowed to
        go into – while it’s not a fact – I understand it may be a fact of the case, this
        is punishment, and the Court knows that the first – the first witness out of
        the box is going to testify that the child is five years – was four years old
        when this happened, or it will certainly come out at some point during
        testimony.
        THE COURT: I’m not denying the fact that the fact is going to come out.
        That particular phrase that says, “If a juror has a bias or prejudice against
        any of the law applicable to this case.” That doesn’t have anything to do
        with the facts of the case, and that’s what you’re dealing with.



        2   Murder is a first-degree felony with a punishment range between five and ninety-nine years, or
life, imprisonment. See TEX. PENAL CODE ANN. §§ 12.32(a) (West 2019), 19.02(c).


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      COUNSEL: Well, but it does have to do with the law of the case that it’s a
      five to 99 punishment. That’s clearly a part of the law of the case where it’s
      a five year – where the Court – where it’s a five year is one of the ranges
      that they can consider.
      THE COURT: And you’re allowed to ask that.
      COUNSEL: Well, and that’s – okay. That was my next argument was – if
      – then I should be allowed to say –
      THE COURT: No.
      COUNSEL: – to ask, “Will the age of the victim be – would that affect – if
      the victim was young, if the victim was old, if the victim was two, if the victim
      was 80, will that affect your ability to be fair and impartial if the age of the”
      – the age of the victim without going into the facts of the case. I certainly
      don’t want to say, “Hey, the victim here is four.” I understand that I can’t
      say that, but I think I can say, you know, if the victim is young, a child, would
      that – can you think of a set of circumstances – under Cardenas, can you
      think of a set of circumstances where you could give five years to – for the
      murder of a child as opposed to five years for example in Mr. Slack’s, the
      old man who helps his long-suffering wife. And I’d also ask by those
      examples it also opens the door to the sort of question. So I think in order
      to effectively represent my client and give her the Constitutional defense
      she’s entitled to, I should be allowed to go into – I should be allowed to go
      into the age of the child. If not, I should be able to go into a generic young
      child or child murder, would that affect your ability to be fair and impartial as
      to a fact of the law, which is the punishment, since this is a punishment
      case.
      THE COURT: You can use the example that he used in some form or
      fashion, but if you say the word “child” I’m going to hold you in contempt of
      court.
      COUNSEL: Well, how else, your Honor, shall I refer to somebody if not a
      child?
      THE COURT: A young person.
      COUNSEL: A young person? Okay. Fair enough.


      During his voir dire, appellant’s counsel informed the panel that the range of

punishment at issue was five to ninety-nine years or life in prison. He questioned venire

members regarding whether they could think of circumstances in which a five-year

sentence might be appropriate and in which a life sentence might be appropriate. He

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also asked, “Would it perhaps affect – what if [the victim] was a younger person or an

older person that was – that was near death or a younger person that was, you know,

had their whole life in front of them? Would that – is that something that would affect your

thinking on the appropriate punishment?” Venire members responded with their opinions

on whether those factors would influence their decision.


       Following the punishment phase of the trial, the jury reached a unanimous verdict

and assessed punishment at confinement in the correctional Institutional Division of the

Texas Department of Criminal Justice for a period of ninety-nine years.


                                          Analysis


       In this appeal, appellant asserts that her trial strategy was to find sympathetic

jurors who would consider the entire range of punishment, even in light of the victim’s

young age. She argues that by prohibiting counsel from referring to the victim as a “child”

in voir dire, the trial court prevented her from determining whether potential jurors would

tend to be heavy-handed in punishment given the facts of the case. Appellant seeks

reversal for a new punishment hearing.


Standard of Review


       The trial court has broad discretion over the jury selection process. Sells v. State,

121 S.W.3d 748, 755 (Tex. Crim. App. 2003) (citing Barajas v. State, 93 S.W.3d 36, 38

(Tex. Crim. App. 2002)). A trial court abuses its discretion when it prohibits a proper

question about a proper area of inquiry. Id. at 755–56. A question is proper if it seeks to

discover a juror’s views on an issue applicable to the case, but a question is impermissible

if it attempts to commit a juror to a particular verdict based on particular facts. Id. at 756.

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Voir Dire


       The purposes of voir dire are (1) to develop rapport between the officers of the

court and the jurors; (2) to expose juror bias or interest warranting a challenge for cause;

and (3) to elicit information necessary to intelligently use peremptory challenges. See

Cordova v. State, 296 S.W.3d 302, 307 (Tex. App.—Amarillo 2009, pet. ref’d). A juror

who testifies that she could not consider the minimum sentence as a proper punishment

is properly the subject of a challenge for cause. See Pierce v. State, 696 S.W.2d 899,

902 (Tex. Crim. App. 1985) (en banc). But while a question committing a juror to consider

the minimum punishment is permissible, “counsel veers into impermissible commitment

questions when he attempts to commit a veniremember to consider the minimum

sentence based on specific evidentiary facts.” Cardenas v. State, 325 S.W.3d 179, 184

(Tex. Crim. App. 2010).


Limitation on Reference to Victim’s Age


       Appellant acknowledges that case law supports the prohibition on references to

the specific age of the victim during jury selection in cases where the age of the victim is

not a part of the statutory elements or statutory manner and means of committing the

offense. See id. at 189. For example, the Court of Criminal Appeals has held that a

defendant’s proposed question asking whether venire members could be impartial in an

indecency case involving a victim who was eight to ten years old or, in the alternative,

nine years old, was both an improper commitment question and so vague as to lead to

an inappropriate fishing expedition. Barajas, 93 S.W.3d at 37–41. Appellant contends




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that while Barajas and other cases prohibit references to the specific age of a victim, the

trial court erred by proscribing the use of the more general identifier “child.”


        The Barajas court held that, if the defendant’s purpose in asking a question was to

determine whether venire members would consider the victim’s age in assessing

punishment, the question was improper. Id. at 40. “The appellant may not seek to commit

venire members to assess or refrain from assessing punishment” on the basis of the

victim’s age. Id.


        Here, appellant’s proposed use of the word “child” to identify the victim would have

given the panel a somewhat specific age range for the victim. By restricting appellant’s

terminology to “younger person,” which is a broader term than “child,” the trial court

prevented the unnecessary and improper introduction of the facts of the case, while still

allowing appellant to investigate venire members’ opinions on whether they could

consider the full range of punishment. We conclude that the trial court did not abuse its

discretion in prohibiting references to the victim as a “child.”


                                         Conclusion


        Having overruled appellant’s sole issue on appeal, we affirm the judgment of the

trial court.




                                                          Judy C. Parker
                                                             Justice


Do not publish.



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