              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                          NO. PD-1400-10



                      CHRISTOPHER CONNLEY DAVIS, Appellant

                                                   v.

                                     THE STATE OF TEXAS

            ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE FOURTEENTH COURT OF APPEALS
                             HARRIS COUNTY

                 K ELLER, P.J., filed a dissenting opinion.

        Defense counsel attempted to ask the prospective jurors what “factors” they considered to

be important in assessing the sentence “in a case of aggravated robbery with a deadly weapon.” Like

the question in Barajas v. State,1 regarding the ability of a prospective juror to be “fair and impartial”

under particular circumstances, the question in this case is ambiguous and subject to being

interpreted as an improper commitment question. Because of this ambiguity, I would hold that the

trial court did not abuse its discretion in excluding the question.

        We have upheld the refusal by trial courts to allow counsel to ask ambiguously worded


        1
            93 S.W.3d 36 (Tex. Crim. App. 2002).
                                                                                DAVIS DISSENT — 2

questions that could be interpreted as eliciting an improper commitment. In Barajas, defense

counsel attempted to ask whether prospective jurors could be “fair and impartial” in a case in which

the victim was nine years old.2 We explained that this question could be interpreted as an inquiry

about the effect of the victim’s age on three different matters: (1) guilt, (2) witness credibility, or (3)

punishment.3 Inquiry into the third matter would constitute an attempt to obtain an impermissible

commitment.4 In Sells v. State, defense counsel attempted to ask, among other things, whether the

prospective jurors “would want to know” the defendant’s minimum parole eligibility.5 We explained

that the question was ambiguous, because it could be intended to determine whether the prospective

juror would “foreclose honest consideration of the special issues” or “give . . . mitigating or

aggravating impact to the minimum parole eligibility requirement.”6 If given the latter interpretation,

the question would call for an improper commitment.7

        We explained in Barajas that “[t]he trial court may, within its discretion, require that parties

phrase questions in a way that is precise enough to glean relevant information from the venire

member’s answer.”8 And in Sells, we said that a trial court may prohibit “attempts . . . through

ambiguously worded questions, to commit the veniremembers to giving mitigating or aggravating



        2
            93 S.W.3d at 37.
        3
            Id. at 39-40.
        4
            Id. at 40.
        5
            121 S.W.3d 748, 755 (Tex. Crim. App. 2003).
        6
            Id. at 756-57.
        7
            Id. at 757.
        8
            93 S.W.3d at 39.
                                                                               DAVIS DISSENT — 3

effect” to a particular fact.9 We also held in Sells that a party could inquire into a prospective juror’s

“general philosophical outlook on the justice system (such as whether [] retribution, deterrence, or

rehabilitation is the prime goal of the criminal justice system).”10 But a party cannot ask even an

open-ended question that seeks to set the parameters of a juror’s decision-making, such as, “What

circumstances in your opinion warrant the imposition of the death penalty?”11 Nor can a party ask

questions about whether a particular factor should be considered mitigating.12

        The question in the present case does not explicitly ask the prospective jurors to say what

types of evidence would be given mitigating or aggravating value in their punishment deliberations

in the case at hand. But the question is not precise enough to limit the prospective jurors’ answers

to matters of general punishment philosophy. What are “factors,” and what does it mean to say that

they are “important?” The Court says that defense counsel’s question “sought to discover which

factors would be important to jurors’ decisions, without inquiring how those factors would influence

the decision.”13 This reasoning is similar to our conclusion in Standefer about the question in Nunfio

v. State14 on whether a prospective juror could be fair and impartial if the victim is a nun. There, we

said “[a] juror could be ‘fair’ and still take into account the victim’s status as a nun where that status




        9
             121 S.W.3d at 756.
        10
             Id. at 756 n.22.
        11
           See Standefer v. State 59 S.W.3d 177, 180 (Tex. Crim. App. 2001) (quoting Allridge v
State, 850 S.W.2d 471, 480 (Tex. Crim. App. 1991)).
        12
             Davis v. State, 313 S.W.3d 317, 346 (Tex. Crim. App. 2010).
        13
             Court’s op. at 4.
        14
             808 S.W.2d 482 (Tex. Crim. App. 1991).
                                                                                 DAVIS DISSENT — 4

is logically relevant to the issue at trial or fail to do so if the juror perceived that the victim’s status

as a nun should not be controlling.”15 Nevertheless, we later overruled Nunfio in Barajas on the

basis that the question was ambiguous about what answers were to be elicited and constituted a

“global fishing expedition” that the trial court was within its discretion to prohibit.16

        The question defense counsel sought to ask might have motivated the prospective jurors to

discuss whether the goal of sentencing is to punish, rehabilitate, or deter criminal behavior, but the

question might also have motivated them to discuss what types of evidence they consider to be

aggravating or mitigating, such as age or criminal history. This danger is especially apparent where,

as here, defense counsel sought to ask the prospective jurors about factors relevant to sentencing for

the specific offense on trial. Under the circumstances, the trial court was at least within its discretion

to prohibit the question as framed. If appellant really was seeking to elicit responses concerning the

prospective jurors’ general punishment philosophies, he could have framed a question that was

precisely designed to achieve that purpose, and the trial court was within its discretion to require him

to do so.

Filed: March 30, 2011
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        15
             Standefer, 59 S.W.2d at 180.
        16
             Barajas, 93 S.W.3d at 39-42.
