Opinion filed May 16, 2013




                                            In The


          Eleventh Court of Appeals
                                          __________

                   Nos. 11-11-00144-CR & 11-11-00145-CR
                                          _________

                            JUAN TREVIZO, Appellant
                                               V.
                       THE STATE OF TEXAS, Appellee


                      On Appeal from the 244th District Court
                                    Ector County, Texas
                    Trial Court Cause Nos. C-37,760 & C-37,761


                       MEMORANDUM OPINION
      Juan Trevizo pleaded guilty to three counts of aggravated sexual assault of a
child, Camila Doe, in Cause No. 11-11-00144-CR and pleaded guilty to one count
of indecency with a child, Kathy Doe, in Cause No. 11-11-00145-CR.1 The cases
were tried together by agreement. The jury found Trevizo guilty on all four counts
and assessed his punishment for each count of aggravated sexual assault at
      1
       We refer to each child victim by a pseudonym.
confinement for fifty-five years and assessed his punishment for indecency with a
child at confinement for twenty years. The trial court sentenced him accordingly
and ordered his sentences on the three aggravated-sexual-assault charges to run
concurrently and his sentence on the indecency-with-a-child charge to run
consecutively. We affirm.
      In a single issue, Trevizo argues that the trial court erred when it prohibited
him from asking the prospective jurors whether, based on a finding of guilt,
“they’ve formed an opinion that he should go to prison.” He contends that his
question was not an improper commitment question and that the question was
relevant to the issue of punishment. Specifically, he argues that the question
addressed whether the prospective jurors could consider the full range of
punishment. He also argues that the error affected his substantial rights.
      During voir dire, defense counsel told the prospective jurors that Trevizo
had pleaded guilty to the charges and that the jury would only be responsible for
determining punishment. Defense counsel told the prospective jurors that he
wanted to know if any of them had formed the opinion that they would send
Trevizo to prison. The prosecutor objected and argued that defense counsel’s
question, as phrased, was an improper commitment question because counsel was
pointing to Trevizo and asking about Trevizo specifically. Defense counsel
responded that he needed to know if the prospective jurors had formed an opinion
that Trevizo should go to prison. The trial court found that the question was not
appropriate and explained that defense counsel could ask whether the prospective
jurors could consider the full range of punishment, including probation, but could
not ask a commitment question as to the particular defendant. The trial court did
not permit defense counsel to ask, “Have you formed an opinion that he should go
to prison?”    However, defense counsel was permitted to ask whether the
prospective jurors could consider the full range of punishment, including
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probation, and counsel used the majority of his time during voir dire to question
the prospective jurors on the issue of probation.
      To determine whether a voir dire question is an improper commitment
question, we must first determine whether the particular question is a commitment
question and, if so, then determine whether the commitment question is proper.
Standefer v. State, 59 S.W.3d 177, 179–83 (Tex. Crim. App. 2001).                  A
commitment question is one that commits “a prospective juror to resolve, or to
refrain from resolving, an issue a certain way after learning a particular fact.” Id.
at 179. A commitment question is proper if it gives rise to a valid challenge for
cause and includes only those facts necessary to establish the challenge for cause.
Id. at 182.
      The question at issue here was a commitment question because it sought to
elicit a commitment from a potential juror as to whether the potential juror had
already decided to send the defendant, who had pleaded guilty to aggravated sexual
assault of a child and indecency with a child, to prison. The question was also
improper because defense counsel was pointing to Trevizo and asking specifically
about whether the potential jurors had decided to send him to prison. While it is
proper for counsel to ask potential jurors whether they could consider the full range
of punishment for the offense of aggravated sexual assault, it is not proper for
defense counsel to ask potential jurors how they would punish counsel’s client
specifically. See id. at 181 (questions concerning whether a juror can consider the
full range of punishment for a particular offense are proper commitment
questions); Moreno v. State, No. 05-09-00583-CR, 2010 WL 2674657, at *3 (Tex.
App.—Dallas July 6, 2010, pet. ref’d) (not designated for publication) (holding
question of whether prospective jurors could consider probation specifically for
Moreno was improper commitment question).            When the question asks the
potential jurors to take the particular defendant into consideration when deciding
                                          3
whether they could consider the full range of punishment, the question includes
more facts than necessary to establish a challenge for cause. See Lewis v. State,
No. 05-98-02116-CR, 2000 WL 772936, at *3–4 (Tex. App.—Dallas June 15,
2000, pet. ref’d) (op. on orig. subm., not designated for publication) (holding that
the trial court did not err in overruling defendant’s challenges for cause where
prospective jurors’ responses that they could not consider probation for Lewis did
not indicate that they could not consider the full range of punishment for the
offense, but only indicated that they would consider the facts of the commission of
the offense in determining the appropriate punishment). Therefore, the trial court
did not err when it prohibited Trevizo’s defense counsel from asking the
prospective jurors whether they had already decided to send Trevizo to prison.
        Even if the trial court erred, the error did not affect Trevizo’s substantial
rights because his defense counsel was permitted to question the prospective jurors
at length regarding whether they could consider the full range of punishment. See
Woods v. State, 152 S.W.3d 105, 109–10 (Tex. Crim. App. 2004) (trial court’s
denial of a proper question did not have a substantial or injurious effect or
influence in determining the jury’s verdict because defense counsel was able to ask
the prospective jurors essentially the same question). In addition, after defense
counsel questioned the prospective jurors on whether they could consider the full
range of punishment, he challenged thirty-three jurors for cause and the trial court
granted each challenge. We overrule Trevizo’s sole issue. 2




        2
         Although Trevizo argues that the proper harm analysis is whether the error affected his
substantial rights, we note that the proper harm analysis is a constitutional harm analysis under TEX. R.
APP. P. 44.2(a). Jones v. State, 223 S.W.3d 379, 380–83 (Tex. Crim. App. 2007). Because defense
counsel was able to question the potential jurors on whether they could consider the full range of
punishment and because defense counsel was granted each challenge for cause that he requested, we find,
beyond a reasonable doubt, that the error did not contribute to Trevizo’s punishment.

                                                   4
      We affirm the judgments of the trial court.




                                                    JIM R. WRIGHT
                                                    CHIEF JUSTICE


May 16, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




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