                                        NO. 07-10-0139-CR

                                  IN THE COURT OF APPEALS

                          FOR THE SEVENTH DISTRICT OF TEXAS

                                            AT AMARILLO

                                               PANEL A

                                       MAY 19, 2011
                              ______________________________


                        JOSEPH MICHAEL ANDERSON, APPELLANT

                                                   V.

                              THE STATE OF TEXAS, APPELLEE


                            _________________________________

              FROM THE 19TH DISTRICT COURT OF McLENNAN COUNTY;

            NO. 2009-1366-C1; HONORABLE RALPH T. STROTHER, JUDGE

                             _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                               OPINION


        Following a plea of not guilty, Appellant, Joseph Michael Anderson, was

convicted of driving while intoxicated, enhanced,1 and sentenced to thirty years

confinement.2 By a single issue, he maintains the trial court abused its discretion by


1
Tex. Penal Code Ann. § 49.04 (West 2003) and § 12.42(d) (West Supp. 2010).
2
 Originally appealed to the Tenth Court of Appeals, this appeal was transferred to this Court by the Texas
Supreme Court pursuant to its docket equalization efforts. Tex. Gov=t Code Ann. ' 73.001 (West 2005).
We are unaware of any conflict between precedent of the Tenth Court of Appeals and that of this Court
on any relevant issue. Tex. R. App. P. 41.3.
sua sponte and pre-emptively forbidding defense counsel from comparing the burden of

proof required in a criminal case with the burden of proof required in a civil case during

voir dire. We affirm.


                                           Background3


       During the early morning hours of February 11, 2009, Officer Michael Miller

observed Appellant's vehicle exit a motel parking lot, cross into an oncoming lane, and

roll through a stop sign. Officer Miller initiated the lights of his patrol car and pulled

Appellant over for traffic violations. After approaching Appellant, Officer Miller noticed

the smell of an alcoholic beverage on Appellant's breath.                According to the officer,

Appellant was not wearing a shirt, had red, bloodshot eyes, and his speech was slurred.

Appellant was asked to exit his vehicle and instructed to perform three field sobriety

tests. According to Officer Miller, Appellant was not able to perform any of the tests

satisfactorily and was arrested.


       Prior to commencement of voir dire, the trial court announced:


       When you're voir diring the jury and we're talking about the standard of
       proof, proof beyond a reasonable doubt, I don't allow anybody to talk
       about clear and convincing evidence, preponderance of the evidence, and
       compare that to proof of beyond a reasonable doubt. I think that confuses
       the jury panel, I think it's misleading, so I don't want anybody saying that
       you've got to have this much -- a certain quantity of evidence to prove a
       civil case and a certain quantity of evidence to prove clear and convincing
       standard of proof and you've got to get to this level to prove a criminal
       case because that's confusing, and there's no definition of proof beyond a
       reasonable doubt, so I don't want anybody voir diring on that issue.



3
 Because Appellant does not challenge the sufficiency of the evidence to support his conviction, only a
brief recitation of the facts is necessary.

                                                  2
       Defense counsel objected on the grounds that he would be unable to intelligently

use his challenges for cause and his representation during voir dire would be rendered

ineffective. Defense counsel raised the issue again several times during voir dire and

his objections to the trial court's limitation were overruled.


       By his sole issue, Appellant maintains the trial court abused its discretion in

forbidding defense counsel from comparing the burden of proof required in a civil case

with that of a criminal case during voir dire. We disagree.


                                    Standard of Review


       We review a trial court's limitation on voir dire for abuse of discretion. See Sells

v. State, 121 S.W.3d 748, 755 (Tex.Crim.App. 2003), cert. denied, 540 U.S. 986, 157,

124 S.Ct. 511, L.Ed.2d 378 (2003). See also Rogers v. State, 44 S.W.3d 244, 248

(Tex.App.--Waco 2001, no pet.).         A trial court has broad discretion over the jury

selection process and it may impose reasonable limits on it.        Woods v. State, 152

S.W.3d 105, 108 (Tex.Crim.App. 2004). A trial court abuses its discretion only when a

proper question about a legitimate area of inquiry is prohibited. Id. A question is proper

if it seeks to discover a juror's views on an issue applicable to the case. Id. (Emphasis

added). The State's burden of proof of beyond a reasonable doubt is a proper question

for purposes of voir dire examination.        Wooldridge v. State, 827 S.W.2d 900, 906

(Tex.Crim.App. 1992). The State's burden of proof is an issue applicable to any criminal

case because the fact-finder must apply that standard when determining guilt. Id. at

904.




                                               3
                                         Analysis


       Section 62.0132 of the Texas Government Code requires prospective jurors to

complete a questionnaire included with a jury summons.           Tex. Gov't Code Ann. §

61.0132 (West 2005).       Appellant provided a copy of the McLennan County Jury

Summons as an appendix to his brief. The questionnaire asks:


       Have you ever served on a civil jury?

       Have you ever served on a criminal jury?

Relying on these questions, Appellant argues that defense counsel should have been

allowed to voir dire the jury panel on the differences between the civil burdens of proof

and the criminal burden of proof. The questionnaire, however, was not made a part of

the appellate record and thus, we will not consider it in our analysis. See Booth v.

State, 499 S.W.2d 129, 135 (Tex.Crim.App. 1973). See also Gabriel v. State, 973

S.W.2d 715, 719 (Tex.App.--Waco 1998, no pet.).


       The line of cases relied on by Appellant stand for the proposition that questions

during voir dire concerning the State's burden of proof of beyond a reasonable doubt

relate to an issue in a criminal case and are therefore proper. See Wooldridge, 827

S.W.2d at 904; Henson v. State, 173 S.W.3d 92, 97-98 (Tex.App.--Tyler 2005, pet.

ref'd). However, those cases do not support Appellant’s argument as they do not hold

that a trial court errs if it does not allow questions during voir dire related to the civil

standards of proof.


       Appellant has not cited us to any authority, and we have found none, where

prohibiting the comparison of the civil and criminal burdens of proof during voir dire in a

                                             4
criminal case is a per se abuse of discretion. While questions concerning other burdens

of proof may not have been impermissible, because a trial court has the ability to

impose reasonable limits on voir dire, we cannot say that the trial court acted

unreasonably in this case by limiting voir dire to the burden of proof actually before that

jury.   Consequently, we hold the trial court did not abuse its discretion in denying

defense counsel's request to ask questions during voir dire about the different civil

standards of proof while questioning the venire panel in a criminal case. Appellant's

sole issue is overruled.


                                        Conclusion


        Having overruled Appellant's only issue, the trial court's judgment is affirmed.




                                                  Patrick A. Pirtle
                                                      Justice



Publish.




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