Opinion issued December 28, 2012.




                                    In The

                           Court of Appeals
                                    For The

                       First District of Texas
                        ————————————
                  NOS. 01-11-01020-CR, 01-11-01021-CR
                        ———————————
                       RANDY LERMA, Appellant
                                      V.
                    THE STATE OF TEXAS, Appellee



                 On Appeal from the 149th District Court
                        Brazoria County, Texas
                      Trial Court Case No. 62565
                          MEMORANDUM OPINION

      A jury found appellant, Randy Lerma, guilty of the offenses of sexual

assault of a child1 and indecency with a child by contact.2 The jury assessed his

punishment for each offense at confinement for 15 years, and the trial court

ordered the sentences to run concurrently. In his sole point of error, appellant

contends that the trial court erred in denying him the right to ask the venire panel a

question concerning the imposition of the maximum punishment allowed.

      We affirm.

                                    Background

      The complainant testified that in September 2009, appellant initiated a

relationship with her by texting to her the word “hey.” The complainant was 14

years old at the time, and she responded to the text message even though she did

not know the sender. The relationship developed into daily text messaging, and,

after about one week, appellant asked the complainant to send him photographs of

her, with and without clothing.

      The complainant, who told appellant that she was only 14, eventually sent

appellant photographs of herself wearing only a bra and panties.           Appellant

1
      See TEX. PENAL CODE ANN. § 22.011 (West 2011); trial court cause no. 62565;
      appellate cause no. 01-11-01020-CR.
2
      See TEX. PENAL CODE ANN. § 21.11 (West 2011); trial court cause no. 62565;
      appellate cause no. 01-11-01021-CR.

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responded that she looked “hot” and sent her a photograph of his erect penis.

Appellant asked for photographs of her breasts and vagina, and the complainant

eventually sent appellant the requested photographs. Appellant then told her that

he would like to touch those parts of her body “one day.”

      In December 2009, appellant drove to the complainant’s neighborhood in

Pearland, Texas from his home in the Lubbock, Texas area. The two met on a

sidewalk, and appellant gave the complainant gifts, including candy, shirts and

energy drinks. Appellant and the complainant talked for about 20 minutes, and

then appellant hugged her and left.

      The relationship continued long distance with text messages and emails,

with appellant and the complainant sending photographs to each other. They

eventually met again in San Marcos, Texas when the complainant was there for her

sister’s softball tournament. By this time, the complainant had turned 15 years old.

The two met for about 20 minutes at a mall, and they went to a Cavender’s store

where appellant bought the complainant some shirts.            Appellant and the

complainant met later at the softball tournament where appellant kissed her. The

two continued to text and send photographs to each other during this time in San

Marcos. The complainant sent appellant a video of herself masturbating, and

appellant responded that he “wanted to do that” to the complainant.




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      A few days later, on May 22, 2010, appellant met with the complainant at

Independence Park in Pearland. The two rode in appellant’s car to a secluded

place near a wooded area. Appellant, after parking his car, used a sun visor to

cover the front windshield even though it was evening. Appellant then kissed the

complainant, took off her shorts and panties, touched her vagina, and performed

oral sex on her until she told him to stop.        Appellant put his finger in the

complainant’s vagina, and the complainant took a photograph with her cellular

telephone and sent the photograph to him.         When appellant asked to see her

breasts, the complainant complied, and he touched them. Appellant then showed

the complainant his penis and asked her if she wanted to have sex with him. After

the complainant said “no,” appellant drove the complainant back to the park and

told her that he loved her before driving away.

      Subsequently when the complainant became upset, her sister heard her

crying and told their parents that something was wrong. The parents then alerted

law enforcement.      Appellant later admitted to Pearland Police Department

Detective Cecil Arnold that he had placed his finger in the complainant’s vagina

and touched her breasts with his hand. Appellant also admitted to sending nude

photographs of himself to the complainant and receiving photographs of her nude.

Appellant further admitted to Detective Arnold that he knew the complainant was

15 years old.

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                                      Voir Dire

      In his sole point of error, appellant argues that the trial court erred in

denying him the right to question the venire panel “on punishment in violation of

his constitutional right to an impartial jury” because he was unable to determine if

any venire members would only consider the maximum sentence of 20 years.

       Questions during voir dire are proper if they seek to discover a juror’s views

on an issue applicable to the case. Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim.

App. 2002). Voir dire examination permits the parties to assess the desirability of

prospective jurors and to select a “competent, fair, impartial, and unprejudiced

jury[.]” Staley v. State, 887 S.W.2d 885, 896 (Tex. Crim. App. 1994) (citation

omitted). Because a trial court has broad discretion over the process of selecting a

jury, an appellate court should not disturb a trial court’s ruling on the propriety of a

particular question during voir dire absent an abuse of discretion. Barajas, 93

S.W.3d at 38. A trial court abuses its discretion when it prohibits a proper question

about a proper area of inquiry. Id.

      During voir dire, the following exchange took place:

      [APPELLANT’S ATTORNEY]:                  There are some things that I
                                               think we need to really discuss,
                                               some of which we’ve already
                                               gone over, Mr. Dornburg went
                                               over, Judge Holder has gone
                                               over. Mr. Dornburg talked to
                                               you about the range of
                                               punishment in this case. In
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                              each count, what we call a
                              count when it’s a sexual
                              assault, carries a penalty range
                              of between 2 and 20 years and a
                              fine.     The indecency also
                              carries the same range of
                              punishment, between 2 and 20
                              years and a fine. Now, I
                              believe that – I believe that
                              somebody said that, and maybe
                              it was you, sir, that you said
                              you couldn’t – that 2 years, no
                              matter what the situation, was
                              just not going to happen.

[VENIRE PERSON NO. 34]:       Not if it’s in the affirmative, no.

...

[APPELLANT’S ATTORNEY]:       Let me ask it this way: Any of
                              you feel like that if Mr. Lerma
                              is found guilty, that he deserves
                              20 years? Flat out, 20 years, no
                              ifs ands or buts?

[STATE’S ATTORNEY]:           Your Honor, I’m going to
                              object to that on the grounds
                              it’s a commitment question.

[THE COURT]:                  Sustained.

[APPELLANT’S ATTORNEY]:       Do you feel like – do each of
                              you feel like if you’re chosen to
                              sit on this jury and consider
                              punishment, that you could
                              consider the full range of
                              punishment, anywhere between
                              2 and 20 years?
                              Let me ask it a little differently
                              than we asked – and Mr.
                          6
                                            Edington responded, that he
                                            couldn’t give anything but – he
                                            could not give two years no
                                            matter what. Are there any of
                                            you that feel that you – that you
                                            could not consider two years
                                            based on the facts – and I know
                                            we’re kind of dividing hairs. I
                                            don’t mean to – but depending
                                            on the evidence that was before
                                            you.
                                            No. 23, Mr. – I apologize. My
                                            notes are all out of order here.
                                            I’m sorry. I know that you
                                            stated, Mr. Smith, that you’re a
                                            former police officer.

      [VENIRE PERSON NO. 12]:               Yes sir.

Appellant’s attorney then went on to ask venire person number 12 about his status

as a police officer and the potential bias of any members of the venire who were

members of law enforcement.

       An attorney may not “attempt to bind or commit a venire member to a

verdict based on a hypothetical set of facts.” Lydia v. State, 109 S.W.3d 495, 497

(Tex. Crim. App. 2003). “Commitment questions are those that commit a

prospective juror to resolve, or to refrain from resolving, an issue a certain way

after learning a particular fact.” Standefer v. State, 59 S.W.3d 177, 179 (Tex.

Crim. App. 2001). While these types of questions generally “elicit a ‘yes’ or ‘no’

answer, an open-ended question can be a commitment question if the question asks

the prospective juror to set the hypothetical parameters for his decision-making.”
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Id. at 180. Commitment questions that attempt to bind prospective jurors to a

position, using a hypothetical or otherwise, are improper and “serve no purpose

other than to commit the jury to a specific set of facts before the presentation of

any evidence at trial.” Lydia, 109 S.W.3d at 497.

      Appellant argues that his question to the venire did not set forth particular

facts asking the venire to resolve or refrain from resolving an issue under those

facts. We conclude that appellant’s question, as stated, was not a commitment

question because it contained no hypothetical facts or evidence other than stating

appellant’s name and asking, were he found guilty, whether anyone on the jury

venire would only be able to assess the maximum punishment of 20 years. See

Standefer, 59 S.W.3d at 179. The question did not ask the venire to resolve or

refrain from resolving an issue, i.e., the maximum punishment, based on a fact in

the case. See id. And both the State and appellant were entitled to jurors who

could consider the entire range of punishment. Cardenas v. State, 325 S.W.3d 179,

184 (Tex. Crim. App. 2010).

      Assuming without deciding that appellant has preserved error, we hold that

any error from the trial court’s refusal to allow appellant’s punishment question

was harmless. See TEX. R. APP. P. 44.2. Appellant asserts that he was unable to

“fully explore[] the bias of the venire, potentially allow[ing] a bias[ed] juror to

influence the sentence.” However, he does not further address the issue other than

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noting that he received a sentence of confinement for 15 years, 75 percent of the

maximum punishment allowed. Moreover, we note that appellant was able to

obtain the same information as to whether members of the venire would only

consider the maximum punishment by asking whether members of the venire could

consider the entire range of punishment. None of the members of the venire

responded that they could not consider the entire range of punishment.      And

appellant did not receive the maximum punishment.

      We overrule appellant’s sole issue.

                                   Conclusion

      We affirm the judgments of the trial court.




                                               Terry Jennings
                                               Justice

Panel consists of Justices Jennings, Higley and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).




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