                                  Fourth Court of Appeals
                                          San Antonio, Texas
                                     MEMORANDUM OPINION
                                              No. 04-16-00360-CR

                                           Ivan William SANCHEZ,
                                                  Appellant

                                                          v.

                                             The STATE of Texas,
                                                   Appellee

                      From the 379th Judicial District Court, Bexar County, Texas
                                    Trial Court No. 2006CR8845
                               Honorable Ron Rangel, Judge Presiding

Opinion by:       Irene Rios, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Rebeca C. Martinez, Justice
                  Irene Rios, Justice

Delivered and Filed: July 26, 2017

AFFIRMED

           Ivan William Sanchez was convicted by a jury of three counts of indecency with a child

and one count of aggravated sexual assault of a child. 1 The complainant was Sanchez’s step-

daughter. The jury assessed a sentence of fifty years’ imprisonment for the aggravated sexual

assault offense and three sentences of twenty years’ imprisonment for the indecency with a child

offenses, and the trial court ordered the sentences to run concurrently. On appeal, Sanchez



1
 This was Sanchez’s second trial for these offenses. This court reversed the judgment from the first trial and remanded
the cause for a new trial. See Sanchez v. State, 383 S.W.3d 211 (Tex. App.—San Antonio 2012, no pet.).
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contends the trial court abused its discretion in allowing the prosecutor to ask an improper

commitment question during voir dire. Sanchez also contends the trial court erred in denying a

mistrial after trial counsel admitted he erroneously advised Sanchez that the jury could assess

community supervision. We affirm the trial court’s judgment.

                                      VOIR DIRE QUESTION

       In his first issue, Sanchez contends the trial court abused its discretion in allowing the

prosecutor to ask an improper commitment question during voir dire. Specifically, Sanchez

complains the following question was improper:

               [Prosecutor]: Do you guys think that a person — let’s say a person has a
       two-parent home or — well, strike that.
               How many of you believe that relatives sometimes abuse children? You
       know, people always make the joke about, hey, don’t hang out with Uncle Bob by
       yourself, you know, people always, you know, will tell jokes about the creepy uncle
       or something like that. How many think that fathers can sometimes abuse children?
       Okay. And just any type of relative, cousins, aunts, just anybody; right? So do you
       think it’s easier to abuse a child if maybe that child is in a broken home? How
       many of you think it’s easier?
               [Defense Counsel]: Judge, that is an improper commitment question, and
       that’s case specific and it doesn’t lead to an exclusion.
               [Prosecutor]: Your Honor, it’s not case specific and it’s not a commitment
       question.
               THE COURT: Overruled.
               [Prosecutor]: Now, in regards to children, you guys just answered my last
       question and you said that maybe it’s like the child who is just allowed to be out
       there and they don’t have parents who are constantly watching them. ….

       The trial court has broad discretion over the process of selecting a jury during voir dire,

which includes the discretion to determine the propriety of a particular question. Barajas v. State,

93 S.W.3d 36, 38 (Tex. Crim. App. 2002); Boutang v. State, 402 S.W.3d 782, 790 (Tex. App.—

San Antonio 2013, pet. ref’d). The trial court’s discretion will not be disturbed on appeal unless

the trial court abused its discretion. Barajas, 93 S.W.3d at 38; Boutang, 402 S.W.3d at 790.

       We apply the following two part test in determining whether a voir dire question calls for

an improper commitment: (1) Is the question a commitment question, and (2) Does the question
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include only those facts that lead to a valid challenge for cause? Standefer v. State, 59 S.W.3d

177, 182 (Tex. Crim. App. 2001). “If the answer to (1) is ‘yes’ and the answer to (2) is ‘no,’ then

the question is an improper commitment question, and trial court should not allow the question.”

Id. at 182-83.

       “Commitment questions are those that commit a prospective juror to resolve, or to refrain

from resolving, an issue a certain way after learning a particular fact.” Id. at 179. “A question is

proper if it seeks to discover a juror’s views on an issue applicable to the case.” Barajas, 93

S.W.3d at 38. “An otherwise proper question is impermissible, however, if it attempts to commit

the juror to a particular verdict based on particular facts.” Id.

       In this case, the prosecutor’s question sought to elicit the prospective jurors general views

on types of children who may be more susceptible to abuse. It did not commit the prospective

jurors to resolving whether a child was abused based on the fact that the child was in a broken

home. Therefore, the question was not a commitment question. See Wingo v. State, 189 S.W.3d

270, 272 (Tex. Crim. App. 2006) (noting inquiries into a jurors’ general beliefs as to wrongness

of conduct was not a commitment question); Vrba v. State, 151 S.W.3d 676, 678-79 (Tex. App.—

Waco 2004, pet. ref’d) (holding question seeking jurors’ general views on signs of intoxication

was not a commitment question); see also Manderscheid v. State, No. 14-12-00579-CR, 2013 WL

6405470, at *2 (Tex. App.—Houston [14th Dist.] Dec. 5, 2013, no pet.) (not designated for

publication) (holding trial court did not abuse its discretion in allowing State’s question regarding

whether child is more likely to be assaulted in a broken home because the question would aid the

State’s use of peremptory challenges). Sanchez’s first issue is overruled.




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                                              MISTRIAL

       In his second issue, Sanchez contends the trial court erred in not granting a mistrial after

his attorney admitted he erroneously advised Sanchez that a jury could sentence him to community

supervision.

       During the punishment phase of trial, Sanchez presented several witnesses who testified in

favor of Sanchez being placed on probation. Sanchez also testified, acknowledging the trial judge

could impose numerous specific conditions if the jury recommended probation and stating he

would comply with the conditions. After both sides rested and the jury exited the courtroom, the

trial judge announced he did not believe Sanchez was eligible for probation because of a prior

conviction. Defense counsel responded that his understanding was that Sanchez was eligible, and

he proceeded “in the manner in which we have” based on that understanding. During the charge

conference the following morning, defense counsel moved for a mistrial, stating:

               I just received the new proposed charge and I reviewed it. It has taken out
       all language regarding probation. Yesterday we discussed my understanding that
       he was eligible for probation. I understand the Court’s position, but at this juncture,
       then, because of that, I’m going to ask for a mistrial. That’s the only cure that I see
       that we can go forward.
               Mr. Sanchez went forward thinking he was eligible based on my advice,
       counsel, and that’s not where we’re at, and the only cure is to declare a mistrial,
       start over and appoint new counsel.

After further discussion, the trial court denied the mistrial.

       We review a trial court’s denial of a motion for a mistrial under an abuse of discretion

standard and uphold the trial court’s ruling if it was within the zone of reasonable disagreement.

Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010); Lopez v. State, 261 S.W.3d 103, 106

(Tex. App.—San Antonio 2008, pet. ref’d). In this case, Sanchez requested the mistrial because

his counsel rendered ineffective assistance in advising him that the jury could assess community

supervision.


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            We apply the two-prong Strickland v. Washington test in evaluating claims of ineffective

assistance of counsel. 466 U.S. 668, 687-88, 694 (1984). Under the first prong, an appellant must

show counsel’s representation fell below an objective standard of reasonableness. Id. at 687-88.

In this case, trial counsel admitted on the record that he erroneously advised Sanchez that the jury

could assess community supervision; therefore, we hold the first prong of the Strickland test was

met. See Riley v. State, 378 S.W.3d 453, 459 (Tex. Crim. App. 2012) (holding first prong of

Strickland met when trial counsel gave incorrect advice regarding probation).

            Under the second prong of Strickland, Sanchez had the burden to show trial counsel’s

deficient performance prejudiced him by showing a reasonable probability that the outcome of the

trial would have been different but for counsel’s errors. 466 U.S. at 694. In his brief, Sanchez

argues he was prejudiced with respect to the “presentation of evidence at the punishment phase of

trial.” 2

            A defendant is not eligible for community supervision based on a jury recommendation if

the defendant is sentenced to a term of imprisonment that exceeds ten years. TEX. CODE CRIM.

PROC. ANN. art. 42.12, § 4(d)(1) (West Supp. 2016). In Ex parte Cash, 178 S.W.3d 816, 818

(Tex. Crim. App. 2005), the Texas Court of Criminal Appeals considered whether trial counsel

was ineffective for failing to file a proper motion for probation prior to trial. Addressing only the

second prong of Strickland, the court held that any finding that the sentencing jury would have

recommended probation if the issue had been submitted to it would be based on pure speculation

and conjecture, especially since the jury sentenced the defendant to forty years in prison. Id. at


2
  Sanchez also argues he was prejudiced “with respect to his decision making process vis-à-vis plea negotiations.”
The prosecutor, however, noted on the record that Sanchez rejected a plea bargain offer pursuant to which Sanchez’s
sentence would be satisfied by time served because Sanchez was concerned with having to register as a sex offender.
Although defense counsel argued a different reason for Sanchez’s rejection of the offer, the trial court could have
determined that Sanchez’s decision during plea negotiations was not influenced by whether a jury could assess
probation. See Riley, 378 S.W.3d at 457-58 (noting appellate court defers to trial court’s determination of historical
facts when standard of review is abuse of discretion).

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818-19; see also Sifuentes v. State, 494 S.W.3d 806, 815 (Tex. App.—Houston [14th Dist.] 2016,

no pet.) (holding “any failure on trial counsel’s part to establish probation eligibility was

inconsequential” where jury assessed punishment at sixteen years’ confinement); Gonzalez v.

State, 748 S.W.2d 510, 512-13 (Tex. App.—Houston [1st Dist.] 1983, pet. ref’d) (overruling

ineffective assistance claim when forty year sentence assessed by the jury made defendant

ineligible to receive probation). Similarly, in this case, the jury assessed fifty year and twenty year

sentences, and any finding that the jury might have assessed a different sentence if Sanchez had

presented other evidence during the punishment phase would also be based on pure speculation

and conjecture. Therefore, Sanchez has failed to establish the second prong of the Strickland test,

and Sanchez’s second issue is overruled.

                                            CONCLUSION

       The trial court’s judgment is affirmed.

                                                   Irene Rios, Justice

DO NOT PUBLISH




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