                IN THE COURT OF CRIMINAL APPEALS
                            OF TEXAS

                                              NO. PD-1400-10



                         CHRISTOPHER CONNLEY DAVIS, Appellant

                                                        v.

                                        THE STATE OF TEXAS



                           ON DISCRETIONARY REVIEW
                     FROM THE FOURTEENTH COURT OF APPEALS
                                HARRIS COUNTY


       Womack, J., delivered the opinion of the Court, in which, Meyers, Price, Johnson,
       Keasler, Hervey, and Cochran, JJ., joined. Keller, P.J., filed a dissenting opinion.


       The appellant was convicted of aggravated robbery, and a jury sentenced him to ten years’

confinement. The Fourteenth Court of Appeals affirmed.1 The appellant petitioned for review

from this Court, contending that the Court of Appeals erred in holding that his voir dire question

was an improper commitment question. We shall reverse and remand to the Court of Appeals for

further consideration.




       1
           Davis v. State, 315 S.W .3d 908 (Tex. App.–Houston [14th Dist.] 2010).
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                                                  I. Background

       During voir dire, defense counsel asked the jury panel, “Let’s talk about factors in

[assessing] the sentence in a case of aggravated robbery with a deadly weapon, what factors do

y’all think are important?” Without an objection from the State, the trial court interjected,

“[Counsel], that’s a commitment question. You can’t ask that question.”

       Citing our opinion in Standefer v. State,2 the Court of Appeals upheld the trial judge’s

ruling. “This question, although open-ended, is a commitment question because it ‘asks the

prospective juror[s] to set hypothetical parameters’ for their decision-making.”3

                                                    II. Analysis

       A commitment question is a question that commits a prospective juror to resolve or to

refrain from resolving an issue a certain way after learning of a particular fact.4 Commitment

questions are impermissible unless the law requires a commitment,5 and the law does not require

a commitment on what factors a juror will consider during sentencing.6 However, a trial court

abuses its discretion if it disallows a proper voir dire question.7

       The Court of Appeals’s holding directly contradicts the decision of the Tenth Court of

Appeals in Vrba v. State.8 In Vrba, the Tenth Court held that the questions “Why do you think


       2
           59. S.W .3d 177, 180 (Tex. Cr. App. 2001).

       3
           Davis, 315 S.W .3d at 913.

       4
           Lydia v. State, 109 S.W .3d 495, 498 (Tex. Cr. App. 2003).

       5
           Sanchez v. State, 165 S.W .3d 707, 712 (Tex. Cr. App. 2005).

       6
           Sells v. State, 121 S.W .3d 748, 757-58, (Tex. Cr. App. 2003); Standefer, 59 S.W .3d at 181-82.

       7
           Barajas v. State, 93 S.W .3d 36, 38 (Tex. Cr. App. 2002).

       8
           151 S.W .3d 676 (Tex. App.–W aco 2004, pet. ref’d).
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someone should be punished?” and “[W]hich one of these [four theories of punishment] is most

important to you in trying to determine how someone should be punished and how much

punishment they should receive?” were not commitment questions.9 Citing a footnote in our

opinion in Sells v. State,10 the Tenth Court concluded that these questions inquired into “the

jurors’ general philosophical outlook on the justice system,” and that parties “are given broader

latitude to ask questions of this sort.”11

         Sells was a capital-murder appeal. Sells’s counsel attempted to ask venire members how

parole law would influence their sentencing decisions,12 but the trial court refused to allow the

questions. We determined that these questions “relate to how a particular fact (in this case, the

minimum amount of time a capital life defendant must be incarcerated before becoming eligible

for parole) might influence jury deliberations,”13 and were thus commitment questions. We then

noted:

         These are not questions, for example, that inquire ... into a prospective juror’s
         general philosophical outlook on the justice system (such as whether the
         retribution, deterrence, or rehabilitation is the prime goal of the criminal justice
         system). The parties are given broader latitude to ask such general background and
         philosophy questions.14



         9
              Id., at 679.

         10
              121 S.W .3d 748 (Tex. Cr. App. 2003).

         11
              Vrba, 151 S.W .3d at 679 (internal quotations omitted).

         12
            Sells, 121 S.W .3d, at 755 (Appellant’s counsel sought to ask questions such as “W ould the minimum
length of time a defendant could serve in prison before he could be paroled be something you would want to know in
answering the special issues?”and “W ould you be more likely, or less likely, generally, to view a defendant as a
continuing threat to society if you knew he could not be paroled for a minimum of 40 years?”)

         13
              Id., at 756.

         14
              Id., at 756 n.22.
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While this note in Sells was not part of our holding in that case, it is an accurate statement of the

law, and the distinction it draws can be seen in this case. The appellant’s counsel asked “what

factors ... are important” in sentencing. This did not ask the jurors how particular facts would

influence their deliberations. This was an inquiry into the jurors’ general philosophies.

       In its opinion, the Court of Appeals compared the appellant’s question to a question given

as an example in Standefer: “What circumstances in your opinion warrant the imposition of the

death penalty?” But the example from Standefer is distinguishable. The Standefer example asked

jurors to define situations in which they would impose a specific sentence. Had this appellant’s

counsel asked jurors what circumstances would warrant the maximum punishment for

aggravated robbery with a deadly weapon, that would have been an impermissible commitment

question. Instead, the appellant’s question sought to discover which factors would be important

to jurors’ decisions, without inquiring how those factors would influence the decision.

       The question in this case is also distinguishable from the death-penalty question because

sentencing for a capital felony has only two possible outcomes, life in prison without parole or

the death penalty.15 Jurors must answer specific questions either yes or no.16 In this case, the

range of possible sentences included probation, possible terms of confinement ranging from five

to ninety-nine years, or life, and a possible fine of up to $10,000. Where jurors will be required to

choose between only two possibilities, inquiries into what will influence their decision are more

likely to require commitments than in situations where jurors can choose among a broader range

of options.


       15
            See T EX . P EN AL C O D E § 12.31.

       16
            See T EX . C O D E C RIM . P ROC . art. 37.071.
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       Having found that the Court of Appeals erred in determining that the appellant’s question

was a commitment question, we remand this cause to that Court for further proceedings.


Delivered: March 30, 2011.
Publish.
