                                       NO. 12-14-00297-CR

                             IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                          TYLER, TEXAS

PEDRO YONATAN HERNANDEZ, JR.,                           §       APPEAL FROM THE 369TH
APPELLANT

V.                                                      §       JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                                §       CHEROKEE COUNTY, TEXAS

                                       MEMORANDUM OPINION
        Pedro Yonatan Hernandez, Jr., appeals his fifty year sentence following his conviction
for aggravated sexual assault of a child. In two issues, Appellant argues that the trial court
abused its discretion by limiting his voir dire examination and making improper comments on
the voir dire testimony. We affirm.


                                               BACKGROUND
        Appellant was charged by indictment with aggravated sexual assault of a child and
pleaded “guilty.” The matter proceeded to a jury trial on punishment.1 At the conclusion of the
trial on punishment, the jury assessed Appellant’s punishment at imprisonment for fifty years.
The trial court sentenced Appellant accordingly, and this appeal followed.


                              LIMITATIONS ON VOIR DIRE EXAMINATION
        In his first issue, Appellant argues that the trial court improperly restricted his voir dire
questioning concerning the venire members’ potential bias with regard to the range of
punishment.


        1
           Appellant’s issues one and two concern the voir dire proceedings at his trial on punishment. Pertinent
excerpts of these proceedings are included in an appendix to this opinion.
Governing Law
        The purposes of voir dire are to (1) develop a rapport between the officers of the court
and the jurors, (2) expose juror bias or interest warranting a challenge for cause, and (3) elicit
information necessary to intelligently use peremptory challenges. Dhillon v. State, 138 S.W.3d
583, 587 (Tex. App.–Houston [14th Dist.] 2004, pet. struck). However, a trial judge may not
restrict proper questions that seek to discover a juror’s views on issues relevant to the case. Id.
The scope of permissible voir dire examination is necessarily broad to enable litigants to
discover bias or prejudice so that they may make challenges for cause or peremptory challenges.
Zavala v. State, 401 S.W.3d 171, 175 (Tex. Crim. App. 2011). We review the trial court’s
determination concerning the propriety of a voir dire question for abuse of discretion. See
Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002).
        Both parties are entitled to jurors who can consider the entire range of punishment for the
particular statutory offense, i.e., from the maximum to the minimum and all points in between.
See Cardenas v. State, 325 S.W.3d 179, 184 (Tex. Crim. App. 2010). Jurors must be able to
consider both a situation in which the minimum penalty would be appropriate and a situation in
which the maximum penalty would be appropriate. Id. Therefore, both sides may question the
panel on the range of punishment and may commit jurors to consider the entire range of
punishment for the statutory offense.        Id.   A question committing a juror to consider the
minimum punishment is both proper and permissible.                Id.   However, counsel veers into
impermissible commitment questions when he attempts to commit a venire member to consider
the minimum sentence based on specific evidentiary facts. Id.
        Additionally, bias has been defined as “an inclination toward one side of an issue rather
than to the other . . . [which] leads to the natural inference that [a potential juror] will not . . . act
with impartiality.” Anderson v. State, 633 S.W.2d 851, 853 (Tex. Crim. App. [Panel Op.] 1982.
Bias, by itself, is not sufficient for a challenge for cause. Id. Instead, an appellant must show
that the juror was biased to the extent that he or she was incapable of being fair. See id. A juror
who indicates this type of bias must be excused despite any protestations by the juror of an
ability to set the bias aside and be fair and impartial. See Clark v. State, 717 S.W.2d 910, 917
(Tex. Crim. App. 1986).




                                                    2
Voir Dire Questions Concerning Bias
         Appellant’s voir dire examination focused heavily on whether his client was “starting off
in the hole” or whether a panel member “leaned” toward the higher end of the punishment range.
The State first objected to Appellant’s line of questioning as posing an improper commitment
question because he sought to tie his questions to the specific facts of the case. 2 The trial court
asked Appellant to rephrase the question. Nonetheless, Appellant continued to specifically relate
his questioning to Appellant’s case.
         As voir dire continued, the State objected that Appellant, by his line of questioning, had
“implied [to the panel that] by leaning toward the State or maximum sentence[, a potential juror]
wasn’t fair and impartial.” The trial court explained to Appellant, “I think the only thing you can
ask [is] can you be fair and impartial, and leave the leaning part out, whether it’s leaning for or
leaning against.” The State asked that the matter be clarified for the jury. Appellant deferred to
the trial court to make that clarification, and the trial court obliged.
         On appeal, Appellant argues that “[o]nce a prospective juror indicates that he is bias[ed]
in favor of the State[,] he is subject to being challenged for cause.” As a result, Appellant
contends that the trial court erred in imposing this limitation because it instructed that potential
jurors could “be biased in favor of the State as long as they said they could ‘consider’ the full
range” of punishment. Appellant’s assertion is incorrect. See Anderson, 633 S.W.2d at 853.
         Here, Appellant repeatedly raised the question to the panel of whether his client was
“starting off in the hole.”          We note, however, that Appellant often responded to a panel
member’s affirmative response to this question with an inquiry concerning whether that person
could be fair and impartial. But at the point where the State made its second objection, it is
apparent from the record that the issue had become muddled.
         At the ensuing bench conference, the trial court sought to streamline the voir dire
examination with consideration given to Appellant’s concern over the mere existence of bias by
focusing the examination on the determinative issue of whether a prospective juror could be fair
and impartial. Following its instruction to the panel, the trial court itself extensively questioned
the panel to ensure that any member who did not feel he or she was capable of being fair and


         2
          See Standefer v. State, 59 S.W.3d 177, 179 (Tex. Crim. App. 2001) (commitment questions are those that
commit prospective juror to resolve, or to refrain from resolving, issue a certain way after learning particular fact).
For a commitment question to be proper, one of the possible answers to that question must give rise to a valid
challenge for cause. Id.


                                                          3
impartial in considering the entire range of punishment had the opportunity to make that fact
known.     Thereafter, Appellant’s attorney essentially endorsed the trial court’s examination,
stating, “That's really the bottom line for this whole thing, is whether you can do that.”
         It is apparent that the trial court did not so much restrict Appellant’s voir dire
examination as focus it on the determinative issues of fairness and impartiality. The trial court’s
action likely led to a more streamlined voir dire proceeding that elicited more useful answers
from potential jurors. Because the trial court did not prohibit Appellant from discovering bias or
prejudice that could result in challenges for cause or peremptory challenges, we hold that the trial
court’s action did not amount to an abuse of its discretion. Appellant’s first issue is overruled.


                      COMMENT ON THE WEIGHT OF VOIR DIRE TESTIMONY
         In his second issue, Appellant argues that the trial court erred in making comments on the
weight of certain voir dire testimony. Specifically, Appellant contends that the trial court’s
remarks following panel members’ answers such as “[t]hat is perfect[,]” and “[t]hat’s the right
answer[,]” amounted to “approval” of these answers.          According to Appellant, through its
remarks, the trial court conveyed to the panel its opinion concerning the voir dire testimony,
“interjected [itself] into the [proceedings] as an apparent willing and willful supporter of the
prosecuting attorney[,]” unfairly limited Appellant’s ability to conduct a meaningful voir dire
examination, and, thereby, denied Appellant a fair and impartial trial on punishment.
         Trial judges are not prohibited from intervening in examinations of a prospective juror.
Ford v. State, 14 S.W.3d 382, 393 (Tex. App.–Houston [14th Dist.] 2000, no pet.). However,
the trial court abuses its discretion when it makes comments reasonably calculated to benefit the
state or prejudice the defendant. See id.; see also Gardner v. State, 733 S.W.2d 195, 210 (Tex.
Crim. App. 1987).
         In the instant case, the trial court’s comments followed its explanation to the jury of the
determinative issues of fairness and impartiality. When read in the context of the totality of the
voir dire proceedings, the trial court’s remarks logically can be understood to not have been
intended in their literal sense. In other words, the trial court was reacting positively to panel
members’ responses to its questioning. It is reasonable to conclude that the trial court was
responding in this way in the interest of perpetuating the conversation with that person as well as
encouraging other panel members to enter the conversation. When the trial court’s remarks are



                                                  4
read in context with the entirety of the record, there is no indication that it was intending to
convey to the panel that a juror’s response was, in fact, “perfect” or “the right answer.” Nor is
there any indication that the venire panel took the trial court’s statements in the literal fashion
that Appellant suggests. Indeed, the trial court, only moments before, told the jury, “[W]e all
want to be fair, but there's some kinds of cases we just can't be. Okay? Nothing wrong with that.
There are no wrong answers to any of these questions.” (emphasis added). We conclude that the
trial court’s comments were not reasonably calculated to benefit the State or prejudice the
defendant. Therefore, we hold that the trial court did not abuse its discretion. Appellant’s
second issue is overruled.


                                                   DISPOSITION
         Having overruled Appellant’s first and second issues, we affirm the trial court’s
judgment.
                                                                 GREG NEELEY
                                                                    Justice


Opinion delivered September 2, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)


                                                          5
6
                                                 APPENDIX
       The following excerpts of the voir dire proceedings in Appellant’s trial on punishment
are germane to our analysis of Appellant’s issues one and two.


                [APPELLANT’S ATTORNEY]: The thing about that is in a case like this, -- And Pedro
       has already told us that he did this thing.

                JUROR 5: Right.

                [APPELLANT’S ATTORNEY]: I don't know what else you're going to hear from the
       witness stand, but that's what we're all guided by, is what you're going to hear from the witness
       stand tomorrow. But my fear is . . . -- is that Pedro and I are starting off kind of in the hole.

                ....

                [APPELLANT’S ATTORNEY]: When we're talking about the range of punishment,
       from 5 up to 99, or life. How do you feel about that? Do you think that the State may be a little
       ahead of us in the terms of time you may deem appropriate for a crime like that?

                JUROR 5: It's kind of hard to say, you know, without . . . --without knowing all the
       facts.

                [APPELLANT’S COUNSEL]: Okay. Well, let me ask you about that. What factors do
       you think you would want to know about this case which would make you decide?

                JUROR 5: I mean, I do agree, you know, that he does need punishment.

               [APPELLANT’S COUNSEL]: Okay. Okay. What factors would you want to hear,
       would you want to know in order to give what you would consider an appropriate punishment?

                 JUROR 5: Well, I mean, you know, like, how old the girl was, you know. I mean, what
       all -- See, I don't know anything about her.

               [APPELLANT’S COUNSEL]: No, exactly right, other than he said he did what he's
       accused of.

                JUROR 5: Yes, sir.

                 [APPELLANT’S COUNSEL]: Okay. But you're telling--you're telling us that you could
       listen to what is said up there, and then you could consider what the law says, --

                JUROR 5: Right.

                [APPELLANT’S COUNSEL]: -- and you would follow the law?

                JUROR 5: Yes.

                ....




                                                      7
       Appellant’s counsel next asked if any other panel members had known anyone who was a
victim of sexual assault. After Juror 6 answered affirmatively and explained her experience, the
following exchange between her and Appellant’s counsel occurred.

                 [APPELLANT’S ATTORNEY]: Exactly. So, bottom line is we're not starting off in the
       hole, as far as number of years that you would even consider for something like this, huh? I mean,
       you could consider the least, up to the maximum?

                JUROR 6: I could.

After several other jurors spoke up concerning instances of sexual assault with which they were
familiar, Appellant’s voir dire examination continued as follows:

                 [APPELLANT’S ATTORNEY]: Okay. Well, my only concern is that it would affect how
       you relate to our case. You know, we're just trying to find fair people who can be fair jurors to
       listen to everything and consider the full range of punishment, as Ms. Patton has already pointed
       out to us, and if your experience is going to affect that in any way, we would like to know that.

                ....

                JUROR 62: I have some personal experience and knowledge, and this subject is an
       incident that happened 55 years ago. I'm not terribly interested in discussing it; however, my
       opinion is that in cases of alcoholism and drug abuse, that rehabilitation is a real possibility, but in
       sexual abuse cases, I don't believe there is -- rehabilitation is very viable on that.

                ....

                [APPELLANT’S COUNSEL]: All righty. Anyone else on that row?


               THE COURT: Excuse me, [Juror 62], just while I -- Do you believe you could be a fair
       and impartial juror in this case?

               JUROR 62: I would not lean very heavily towards the short end of the scale, Your
       Honor. I will be more prone to think that a higher sentence would be more appropriate.

                THE COURT: All right. Thank you very much . . . .

                ....

                [APPELLANT’S ATTORNEY]: [Juror 1], let me ask you, what factors would be -- to
       you, what factors would be important in making a decision as to the amount of punishment that an
       individual would receive? What would you want to know about a particular case (inaudible)?

                JUROR 1: In what I've heard about this case, I -- I don't know that there's anything in
       particular. I think it would be the larger end of the scale.

                [APPELLANT’S ATTORNEY]: You're saying you can't be fair and impartial?

                 THE COURT: Ma'am, let me get you to stand, please. I'm going deaf in my old age, and
       I can't hear very well. Did you -- You said you could be --



                                                          8
          JUROR 1: I said it would be very difficult to be impartial on what I've heard so far about
this case. It would be very difficult for me to be impartial.

         THE COURT: So, you don't believe you could be. And I know --

         JUROR 1: I would try, but I just --

         THE COURT: I understand.

         JUROR 1: -- I don't think -- I think the maximum would be --

         THE COURT: You're already telling us you would lean towards the maximum?

         JUROR 1: Yes.

         THE COURT: Okay. Thank you. Folks, I'm not interrupting [Appellant’s Attorney].
Folks, as fair jurors, you know, we all want to be fair, but there's some kinds of cases we just can't
be. Okay? Nothing wrong with that. There are no wrong answers to any of these questions.

         ....

         [APPELLANT’S ATTORNEY]: I was going to say the very same thing. I appreciate
your candor. I really do. That's what we're here for, we need to find out exactly how you feel. And
it's okay to feel like that. Like the Judge said before, we all have prejudices. We like certain
things, we don't like certain things. We're all different . . . .

         ....

         [APPELLANT’S ATTORNEY]: How do you feel about that?

         ....

          JUROR 4: About that, I don't -- I don't think I could be fair about that because of the
situation.

         ....

         JUROR 4: I would be more toward the far side, not the bottom.

          [APPELLANT’S ATTORNEY]: That's okay. I understand that. I appreciate it. [Juror 5],
I will ask you the same -- I'm going to ask everybody that question, so --

         JUROR 5: I would have to say I would have to go for the far side.

         [PROSECUTING ATTORNEY]: Judge, may we approach?

         THE COURT: Yes, ma'am.

(At the Bench, on the record)

         [PROSECUTING ATTORNEY]: I just want to be clear. The way I'm understanding
[Appellant’s Attorney’s] question is based on what you know about this case right now, could you
consider the full range of punishment. That is not a proper question, Judge.

         THE COURT: It would be more without knowing the facts.



                                                  9
           [PROSECUTING ATTORNEY]: In any case, not this case. This case, they can lean to
the max.

          THE COURT: I understand . . . can they be fair and impartial. We can't allude to the
facts of this case.

         [APPELLANT’S ATTORNEY]: I'm not asking them about this case. I'm asking them
about the case that --

         [PROSECUTING ATTORNEY]: The response [Juror 1] had is based on what I know
about this case, and then he said to the next guy Well, what do you think about what she just said.

           THE COURT: Okay.

           [PROSECUTING ATTORNEY]: Well, based on what I know about this case, --

           THE COURT: Rephrase it . . . .

           [APPELLANT’S ATTORNEY]: Okay.

(Open court)

         THE COURT: Let me do this, too. Ladies and gentlemen, nothing I say is evidence,
nothing either one of these two lawyers say is evidence. You're going to make your decisions
solely on what you hear from that witness stand. These are hypotheticals, and the hypothetical is,
can you consider the full range of punishment, because that is what you're going to be called upon
to do, and you must be able to consider it. Now, then, so far, there are no facts in this case, and I
emphasize, none. Okay? So, you have heard no evidence. You don't know any of the facts.
Okay? Thank you.

          [APPELLANT’S ATTORNEY]: [Juror 1], like the Judge said, we haven't heard any
facts; right? There are no facts, because nothing has been presented from the jury box in the
witness stand. Now, again, without knowing any of the facts, on any case like this, are we starting
-- Pedro and I starting off behind?

           JUROR 1: Yes.

          [APPELLANT’S ATTORNEY]: So, you're saying any aggravated sexual assault -- not
this case, but any aggravated sexual assault case, Pedro and I are starting off behind on our case?

           JUROR 1: Well, you stated that he's already admitted that he was guilty.

         [APPELLANT’S ATTORNEY]: That's true. But, again, we're talking about punishment.
We're here -- you guys, whoever the 12 of you are . . . [are] going to be considering his
punishment. Now - - and I know these are - - these are egregious cases, they're not good, but the
bottom line is you have to listen to what's going to be said from the witness stand up there and
then make a decision. Can you consider - - that's the question - - from the least amount of time up
to the maximum, or not. That's it. That's it. So, with that, no facts, we don't have any facts other
than his statement that he did what he's accused of doing, we're talking about punishment; only
punishment. And we know that's from 5 to 99, or life in prison. Can you -- can each of you do
that? That's it. And listen, like I've told you before, there are no wrong answers. It's okay if you
can't. I understand that. The Judge understands that. [The Prosecuting Attorney] understands
that. We just need to know.

           JUROR 1: I still stand by what I said.



                                                    10
         [APPELLANT’S ATTORNEY]: You can't be fair and impartial?

         JUROR 1: I don't think so.

         ....

         [PROSECUTING ATTORNEY]: Can we approach, again?

(At the Bench, on the record)

        [PROSECUTING ATTORNEY]: Just because they're leaning towards the State does not
mean they're not fair and impartial. They're allowed to lean towards the State when the man - -
when they are talking about punishment.

         THE COURT: The only question you can ask can you be fair and impartial.

         [APPELLANT’S ATTORNEY]: That's what I asked.

         [PROSECUTING ATTORNEY]: But he implied by leaning toward the State or
maximum sentence that wasn't fair and impartial, and can you lean toward the maximum sentence,
you can sit out there and think one situation in the world where I would not give the maximum,
but as long as you've got that one, you can be a juror.

       [APPELLANT’S ATTORNEY]: All I was asking is can she consider the full range of
punishment.

         ....

         THE COURT: You cannot say leaning towards the State or putting your client in the
hole, or words to that effect, when you're not leaning towards us. I think the only thing you can
ask, can you be fair and impartial, and leave the leaning part out, whether it's leaning for or
leaning against. Okay?

         [PROSECUTING ATTORNEY]: That needs to be clarified, and it needs to be explained
to them that they can lean towards the maximum and still be fair.

         [APPELLANT’S ATTORNEY]: I'll let you explain it to them.

(Open court)

          THE COURT: Ladies and gentlemen, we go back, again, to the range of punishment.
You can have feelings in leaning towards one way -- one end or the other. You can say well, right
now, I may be in these kind of cases leaning towards the max, or leaning towards the minimum.
Okay? The law says you can do that. The question is can you consider the full range of
punishment when you're presented the facts, okay, after you are presented the facts. All right? But
that's the way the law is dictated to us. Okay? So, thank you very much.

       [APPELLANT’S ATTORNEY]: [Juror 1], can you consider the full range of
punishment?

         JUROR 1: Yes, sir.

         [APPELLANT’S ATTORNEY]: Okay. [Juror 4]?

         JUROR 4: I don't know if I could, or not.



                                                11
         ....

          THE COURT: Folks, I understand for the first time in your lives you're being inundated
with these questions. All right? So, you know, I am sympathetic towards you. Now, you just said
I don't know whether I can, or not.

         JUROR 4: I don't know whether I could, or not.

         THE COURT: Well, that's -- that's a pretty good answer. And the school superintendent
over there is shaking his head saying yes, he agrees with you. I'm just trying to figure out. You've
got to be able to say I can consider the full range of punishment, because you're going to have to
make a decision; those 12 jurors are. All right. I'm going to get to you next, but as I -- when I leave
him, -- Let me leave you a minute and go back. Yes, sir? You raised your hand.

         JUROR 6: Yes, sir. Number 6. So, can I or anyone else, they are going to do them, can I
consider the full range based on the facts?

         THE COURT: No. In a hypothetical --

         JUROR 6: Hypothetical. Hypothetical, can I consider them? Then, my thought process
simply, and y'all both deserve to hear this, someone has admitted guilt to something, with a range
of punishment from 5 to 99 years. I can see 5 years in a situation described earlier where there was
a misunderstanding, there was a leading on, the role that, you know, the predisposed typical
gender of the aggressor was inverted, and I can understand that. Then, I can see someone who
rapes a baby, and falling toward the 99. So, given what I have heard today, I could consider five,
and I could consider 99. And because of his admission of guilt, which is fact, that punishment for
me will fall somewhere in that range once we get in the box and we hear the details.

         THE COURT: That is perfect.

         JUROR 6: That's it. So, there's my answer.

         [APPELLANT’S ATTORNEY]: Good for you.

         ....

        THE COURT: I understand. All right, folks. I'm asking that question. Young lady, did
you need to say something? I thought you stood up.

         ....

         JUROR 48: [] I agree with everything he said.

          THE COURT: Well, that -- that's good. That's the right answer. That's the right answer.
Okay? So, I ask this question to be sure everybody understands. You're going to hear the facts
when you sit over there. You're not going to hear any facts until you do. Okay? And then -- you
hear the facts, and then you decide the punishment. But going in, you've got to be able to consider
it all. Okay? The whole range. Does anyone have a problem with that?

         JUROR 4: I do, Judge.

         THE COURT: All right. That's not a problem. If you have a problem with it . . . .

         ....




                                                 12
         THE COURT: Okay. No problem. Anyone else? Anyone else, other than the people I'm
going to talk to anyway? Okay. Thank you very much. You may proceed, Counselor.

           [APPELLANT’S ATTORNEY]: Well, I guess that the rest of you agree with [him], is
it? Is that right?

         JUROR 6: Yes, sir.

         THE COURT: Is that true?

         JUROR 6: Yes, sir.

         [APPELLANT’S ATTORNEY]: So, you can do it?

         JUROR 6: Yes, sir.

         [APPELLANT’S ATTORNEY]: And you will do it. Promise?

         JUROR 6: Yes, sir.

         [APPELLANT’S ATTORNEY]: Okay. That's great. Well, I don't know -- That's really
the bottom line for this whole thing, is whether you can do that. Like I said, Pedro, he made a -- he
made a terrible mistake. And we've all made mistakes in our lives, but this is one that could cost
him a long time in prison. So, we look forward to the 12 of you who will not be eliminated and
working with you. Okay? And I know there's some of that you want to come up and talk with us
personally, which is great. We look forward to that. Thank you very much, folks . . . .




                                                13
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                         SEPTEMBER 2, 2015


                                         NO. 12-14-00297-CR


                            PEDRO YONATAN HERNANDEZ, JR.,
                                       Appellant
                                          V.
                                 THE STATE OF TEXAS,
                                       Appellee


                                Appeal from the 369th District Court
                           of Cherokee County, Texas (Tr.Ct.No. 19027)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
