                                   NO. 07-03-0214-CR

                              IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                 NOVEMBER 29, 2004
                           ______________________________

                                BRYAN KEITH KITCHEN,

                                                               Appellant

                                            v.

                                 THE STATE OF TEXAS

                                                        Appellee
                          _________________________________

     FROM THE COUNTY COURT AT LAW NO. 2 OF MONTGOMERY COUNTY;

                   NO. 02-177,298-02; HON. JERRY WINFREE, PRESIDING
                            _______________________________

                                 Memorandum Opinion
                           _______________________________

Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.

       Through one issue, appellant Bryan Keith Kitchen appeals his conviction for driving

while intoxicated. He contends that the trial court erred in denying him permission to pose

one additional question to the potential jurors during voir dire. We affirm the judgment of

the trial court.

       The pertinent standard of review is one of abused discretion. McCarter v. State, 837

S.W.2d 117, 120 (Tex. Crim. App. 1992). That is, a trial court has the discretion to set
reasonable time limits on voir dire. Boyd v. State, 811 S.W.2d 105, 116 (Tex. Crim. App.

1991), cert. denied, 502 U.S. 971, 112 S.Ct. 448, 116 L.Ed.2d 466 (1991). And, only when

that discretion is abused can we interfere with the decision.

         Here, the trial court informed both the State and appellant that they each had 35

minutes to conduct their voir dire. After counsel for appellant began his and 30 minutes

expired, he was informed by the court that only five minutes were left. When that five

minute period lapsed, appellant’s counsel asked for leave to ask one more question of the

venire.1 The question consisted of asking “whether or not this smell of alcohol in and of

itself is an indication of intoxication in the jurors’ opinion.” The trial court refused to grant

him additional time to pose it, however.

         Whether a potential juror would deem the smell of alcohol alone as indicative of

intoxication is a commitment question. This is so because it, in effect, seeks to discover

how he would resolve an issue based upon one or more facts contained in the question.

See Standefer v. State, 59 S.W.3d 177, 180 (Tex. Crim. App. 2001) (stating that “a

question is a commitment question if one or more of the possible answers is that the

prospective juror would resolve or refrain from resolving an issue in the case on the basis

of one or more facts contained in the question”). Simply put, through the question before

us, the panel was being asked to determine whether or not the smell of alcohol would

indicate that appellant was drunk. And, that is a commitment question since it seeks to

determine how a potential juror would resolve an issue (i.e. appellant’s intoxication) in the

presence of a particular fact (i.e. the smell of alcohol).


         1
             S om e have said that in the vernacular of an attorney, one question does not necessarily mean one
que stion.

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       In concept, the question posed by appellant’s counsel is no different than asking a

venire member whether he considers a particular type of evidence to be mitigating. Both

involve a juror disclosing the impact particular facts would have on his consideration of

particular issues. So, because a litigant seeks a commitment when asking a venire about

what facts it would consider to be mitigating evidence, Standefer v. State, 59 S.W.3d at

181 (so holding), he too is seeking a commitment when asking about whether a particular

fact suggests intoxication.

        Next, jurors could very well consider the smell of alcohol on a person as an

indication that the person was intoxicated. See e.g., Owens v. State, 135 S.W.3d 302, 306

(Tex. App.–Houston [14th Dist.] 2004, no pet.) (citing the smell of alcohol on the appellant

as an indicia of intoxication). Since they can, the question is not one that would lead to a

valid challenge for cause. See Standefer v. State, 59 S.W.3d at 183 (stating that because

a jury may consider the refusal to take a breath test as evidence of guilt the question

“would you presume someone guilty if he or she refused a breath test on their refusal

alone” was not one that would lead to a valid challenge for cause).

       In view of the foregoing, we hold that the question appellant sought to ask the venire

at bar was an impermissible commitment question. See Standefer v. State, supra (defining

an impermissible commitment question as a commitment question that does not lead to

a valid challenge for cause). Being impermissible, it was not one that appellant’s trial

counsel could ask the venire. And, being of that ilk, the trial court did not abuse its

discretion in refusing to allot appellant more time to ask it during voir dire. See McCarter

v. State, 837 S.W.2d at 119 (stating that whether the trial court abused its discretion in



                                             3
refusing a litigant permission to ask a question during venire is dependent upon whether

the litigant was attempting to prolong voir dire and whether the question was a permissible

one to ask).

       Accordingly, we affirm the judgment of the trial court.



                                                 Brian Quinn
                                                   Justice



Do not publish.




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