
NO. 07-97-0347-CR



IN THE COURT OF APPEALS



FOR THE SEVENTH DISTRICT OF TEXAS



AT AMARILLO



PANEL D



APRIL 16, 2002

______________________________



RONNIE FREEMAN,



Appellant

v.



THE STATE OF TEXAS, 



Appellee

_________________________________



FROM THE 140
TH
 DISTRICT COURT OF LUBBOCK COUNTY;



NO. 96-422758; HON. JIM BOB DARNELL, PRESIDING

_______________________________



ON REMAND FROM COURT OF CRIMINAL APPEALS



Before BOYD, C.J., and QUINN and REAVIS, J.J.

Dissent

I respectfully dissent and conclude that the court’s original opinion drafted by Chief Justice Boyd was and is correct.  In sum, the trial court erred in prohibiting appellant from assessing whether the potential jurors could be fair and unbiased (as required by law) irrespective of the age of the victim.  Furthermore, the recent opinion by a bare majority of the court in 
Standefer v. State
, 59 S.W.3d 177 (Tex. Crim. App. 2001) does not persuade me otherwise.  Rather it reinforces my conclusion.  Admittedly, that writing purports to establish a bright-line rule to be applied when determining whether a question propounded to the jury venire constitutes an impermissible commitment question.  I too admit that it overruled precedent of the Court of Criminal Appeals, 
i.e.
 
Maddux v. State
, 862 S.W.2d 590 (Tex. Crim. App. 1993), upon which we relied in issuing our original opinion and judgment.  Yet, in remanding the cause before us “for reconsideration in light of 
Standefer
,” the Court of Criminal Appeals did not say that our original opinion and judgment were wrong.  Nor did it purport to suggest that it believed that 
Standefer
 required a different result.
(footnote: 1)  Instead, I read it as obligating me to conclude as I do.

In 
Standefer
, the court did not purport to affect the need for fair and impartial juries.  Rather, it sought to further regulate the procedure utilized to assess partiality and bias.  And, in doing so, it 
acknowledged that not all commitment queries propounded during voir dire are impermissible
.  Instead, the propriety of the question depends upon two criteria, according to the court.  The first concerns whether the question is one actually seeking some commitment from the prospective juror; that is, it must seek a commitment from the potential jurors to act in a certain manner depending upon their resolution of the factual hypotheticals contained in the question.  
Standefer v. 
State, 59 S.W.3d at 183
.
  The second involves whether the inquiry includes facts other than those necessary to develop or establish a valid basis to challenge the respondent for cause.  
Id
.
(footnote: 2)  With this said, I turn to the circumstances at bar.

The question appellant endeavored to ask is contained in a bill of exception developed before the trial court.  As illustrated by that bill, appellant “wished to inform the jurors that the victim . . . was a two-week old child” and “wanted to ask [them] . . . whether that fact would have any affect on their verdict, whether it be on guilt-innocence or on punishment.”  Obvious from this is appellant’s reason for asking the question.  He simply wanted to know 1) whether the jurors could remain fair and unbiased and 2) follow the law, despite the victim’s age.  
It goes without saying that both the State and defendant were and are entitled to fair and impartial jurors capable of following the law and overcoming personal bias and prejudice.  
See Dinkins v. State
, 894 S.W.2d 330, 344-45 (Tex. Crim. App. 1995) (stating that a venireman is subject to challenge by either the State or defendant if he is unable to follow the law); 
Ransom v. State
, 630 S.W.2d 904, 908 (Tex. App.–Amarillo 1982, pet. ref’d.) (recognizing that litigants in a criminal proceeding are guaranteed a fair and impartial jury).  And, appellant wanted to assure that the body adjudging him met that criteria.

Next, I assume 
arguendo
 that asking veniremen whether the age of the victim could affect their decision 
viz-a-viz
 guilt or punishment is a commitment question.  Indeed, some could possibly say that it constitutes effort to “set the hypothetical parameters for [the juror’s] . . . decision making,” and, that is all the 
Standefer
 majority required to satisfy the first prong of the test.  
Id.
 at 180.  Instead, my focus lies upon three other indicia.  They are: 1) a possible answer to the question; 2) the relationship of the answer to the respondent’s ability to legally serve on a jury; and, 3) whether the facts mentioned in the query were solely those needed to render the venireman objectionable.  As to the possible answer to the question, it is “yes.”  Next, in answering “yes,” the venireman reasonably indicates, at the very least, that the age of the victim could be influential or determinative in assessing guilt, as opposed to the evidence of guilt or the State’s satisfaction of its burden to prove guilt.  And, once the venireman so indicates, he has rendered himself subject to challenge for cause.  Again, jurors must follow the law, which law requires that they convict only if the State has presented evidence establishing, beyond reasonable doubt, each element of the crime.  
See
 
Gray v. State
, 51 S.W.3d 856, 860 (Tex. App.–Texarkana 2001, pet. granted).  Factors irrelevant to guilt, such as a victim’s age, ethnicity, sex, sexual preference, religion or the like, cannot generally form the basis of a decision to convict.
(footnote: 3)  Lastly, the 
only
 fact mentioned in the question, 
i.e.
 the victim being two-weeks old, is the very fact needed to determine whether the venire member is barred from serving on the jury.  

Thus, before us we have a situation wherein a possible answer to the question would provide basis to remove the respondent from the jury and the facts mentioned in the question do not exceed those needed to establish the grounds for challenge.  Moreover, this question differs little from one approved in 
Standefer
 that involved nuns.  There, the court found nothing wrong with asking “‘[I]f the victim is a nun, could [the prospective juror] be fair and impartial?’”  
Standefer v. State
, 59 S.W.3d 180.  Here, and though his question was worded differently, appellant too wanted to know if the jurors could be fair and impartial despite a characteristic of the victim, that characteristic being age.
(footnote: 4)  In sum, the question before us not only likens to one found permissible in 
Standefer
, it falls outside the boundaries of an impermissible commitment inquiry as those boundaries are defined in that same case
. 
  

For these reasons, I respectfully dissent and reaffirm the conclusion and
 
 judgment this same panel reached when the cause was originally submitted.     
        



Brian Quinn

   Justice



Publish.







 

FOOTNOTES
1:If it had so thought, precious judicial resource could have been conserved had the higher court simply addressed and resolved the dispute itself. 


2:In other words, asking the jury to commit to acting in a certain way is not wrong if “
one . . .
 
“possible answer
[]” renders the jury subject to removal for cause, and only those facts needed to arrive at that particular response are included in the question.  
Standefer v. State
, 59 S.W.3d 177, 180 (Tex. Crim. App. 2001) (emphasis added).  Though the application of this test appears easy when describing it, one must recall the old adage about not judging books by their covers.  Yet, I need not delve into the myriad of situations in which the application of the rule is hardly facile.  It is sufficient to refer to the majority and dissenting opinions in 
Standefer
 and the concurring opinion rendered by two judges on the Court of Criminal Appeals in the case at bar to understand that not all is as it seems when it comes to commitment questions.   


3:I say “generally” for there may be situations wherein race, sex, or the like are elemental to conviction, such as in statutory “hate” crimes.


4:That appellant may not have explicitly used the words “fair,” “unbiased,” “impartial” or the like in his question does not control the outcome of the appeal.  This is so for several reasons.  First, it was and is clear that he was attempting to assess the potential jurors’ ability to be fair and unbiased.  Given this clarity of purpose, I hesitate to substitute form over substance, that is, pretermit inquiry into potential bias and prejudice merely because the question failed to contain a particular word.  
See Dowling v. State
, 926 S.W.2d 752, 754 (Tex. App.–Amarillo 1996, pet. ref’d) (noting that one should avoid placing form over substance).  Second, in ruling as it did, the trial court prevented appellant from delving into the topic of bias, partiality, and the potential impact the victim’s age alone would have on the juror’s decision-making process.  And, it did so because it “disagree[d]” with the notion that “killing a two-week old baby” may offend some more than killing an older victim.  Though killing in general irrespective of the victim’s age could indeed be considered offensive, the appellant was entitled to assess whether the youthfulness of the victim at bar would alone be influential or determinative of guilt in the minds of some jurors.  And, the court did not prohibit appellant from doing so because of the question asked but because it did not think it was a proper subject of inquiry.  


