Atkins v. State

• Decision Date: 07 May 1997
• Docket Number: No. 528-96,528-96
• Parties: Milton Ray ATKINS, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

Page 787

951 S.W.2d 787

Milton Ray ATKINS, Appellant, v. The STATE of Texas.

No. 528-96.

Court of Criminal Appeals of Texas En Banc.

May 7, 1997.

Opinion GrantingRehearing Sept. 24, 1997.

Tony Aninao, Houston, for appellant.

Kimberly Aperauch Stelter, Asst. District Attorney, Houston, Jeffrey L. Van Horn, Asst. State's Attorney, Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

OVERSTREET, Judge.

Appellant was indicted in November 1992 for the felony offense of Possession of a Controlled Substance (cocaine), weighing less than twenty-eight grams, pursuant to Tex.Health & Safety Code Ann. § 481.115(b). He was found guilty by a jury and pled true to two enhancements paragraphs whereupon the trial judge sentenced him to thirty years confinement in Texas Department of Criminal Justice. The Fourteenth Court of Appeals affirmed the conviction. Atkins v. State, No. 14-93-00923-CR, 1996 WL 75885 (Tex.App.-Houston [14th Dist.] 1996, pet. granted). We granted review on ground two of appellant's petition for discretionary review. ¹

I. PERTINENT FACTS

When appellant was arrested, an inventory search of his person yielded a crack pipe containing cocaine residue. During the State's voir dire examination, a hypothetical was used to elicit the views of the prospective jurors. Specifically, the following exchange took place:

The [State]: ... If the evidence, in a hypothetical case, showed that a person was arrested and they had a crack pipe in their pocket, and they had a residue amount in it, and it could be measured, and it could be seen, is there anyone who could not convict a person, based on that--

The [defense]: Objection, Your Honor. He's trying to commit the jury to a specific fact situation.

The Court: Overruled....

After overruling the objection, the prosecutor inquired row by row as to whether each juror could follow the law and find appellant guilty of possession of cocaine if it were shown beyond a reasonable doubt that the crack pipe contained a residual amount of cocaine. As a result, several jurors were challenged for cause and dismissed.

II. APPELLANT'S CONTENTIONS

Appellant contends that it was improper voir dire for the State to seek to commit a prospective juror on an issue of the case. He contends the State sought to commit the jurors on the issue of possession of a residual amount of cocaine by using a hypothetical containing the identical facts of the case. He maintains that the State is not allowed to use hypotheticals based on the facts of the case to be submitted to the jury and that the court should not allow questions "designed to bring out the prospective juror's views on the case and the facts about to be tried." Cadoree v. State, 810 S.W.2d 786 (Tex.App.--Houston [14th Dist.] 1991, pet. ref'd).

Appellant complains that the prosecutor's use of a hypothetical specifically about residue in a crack pipe was improper and exceeded the proper scope of the use of a hypothetical. He claims it was an effort by the prosecutor to commit the jurors to a verdict of guilty based upon the specific facts of the case before hearing the evidence. For these reasons, appellant asserts that the ground should be sustained and the case reversed and retried.

III. STATE'S CONTENTIONS

The State maintains that the hypothetical used by the prosecutor was an attempt to ascertain whether the prospective jurors had a bias or prejudice against an aspect of the law applicable to the case. It insists that the prosecutor was trying to determine whether any of the jurors had reservations about convicting someone for possession of a very residual amount of cocaine. Citing to Smith v. State, 703 S.W.2d 641 (Tex.Crim.App.1985), the State claims the question was proper in order to achieve this goal. In Smith it was held that a question is proper if it seeks to discover a juror's views on an issue applicable to the case. In this case several jurors admitted in response to the State's inquiry that they would not be able to follow the law and convict someone for a residual amount of cocaine. The record reveals that those jurors were struck for cause because they could not follow the law. The State propounds that this is not improper voir dire, but is the purpose of voir dire.

IV. COURT OF APPEALS DECISION

The Fourteenth Court of Appeals held that the hypothetical used by the prosecutor during voir dire was not improper. The court pointed out that a question on voir dire is "proper if its purpose is to discover a juror's view on an issue applicable to the case." Atkins, No. 14-93-00923-CR, slip op. at 6, citing Ex parte McKay, 819 S.W.2d 478, 482 (Tex.Crim.App.1990) and Henry v. State, 800 S.W.2d 612, 616 (Tex.App.--Houston [14th Dist.] 1990, no pet.). The court further asserted that "a hypothetical used as a voir dire question may be similar to the facts of the case." Id. The court of appeals affirmed the judgment of the trial court finding that the prosecutor's hypothetical was not improper and did not exceed the scope of voir dire.

V. ANALYSIS

Appellant's second ground for review asserts that "review should be granted where the conclusion of the court of appeals that it was proper for the trial court to overrule the appellant's objection to the State's jury voir dire hypothetical using the identical facts adduced at trial of residue in a crack pipe, directly conflicts with well established case authority from this Court." Since appellant asserts a conflict between the law of this Court and the law relied upon by the court of appeals, a review of this Court's cases concerning the use of hypotheticals is necessary.

The use of fact specific hypotheticals was presented before this Court in White v. State and it was held that "there was no error in refusing to let the appellant ask a hypothetical question that was based on the facts peculiar to the case on trial." White v. State, 629 S.W.2d 701, 706 (Tex.Crim.App.1981), cert. denied, 456 U.S. 938, 102 S.Ct. 1995, 72 L.Ed.2d 457 (1982). This holding was refined in Cuevas v. State when the Court held the use of a hypothetical fact situation during voir dire is permissible if it is used "to explain the application of the law. However, it is improper to inquire how a venireman would respond to particular circumstances as presented in a hypothetical question." Cuevas v. State, 742 S.W.2d 331, 336 n. 6 (Tex.Crim.App.1987). Several years later, this Court held the use of a hypothetical regarding the victim's status as a child was not an improper question because it sought to ascertain potential bias. Maddux v. State, 862 S.W.2d 590 (Tex.Crim.App.1993).

In the case at bar, the prosecutor used a hypothetical which contained facts similar to those presented in the case. Because the law allows the use of a hypothetical to ascertain the views of the prospective jurors on issues pertinent to a fair determination of the case, it must be determined whether the hypothetical was used to explain the law or was used to commit the jurors to particular circumstances. During voir dire the prosecutor asked, " ... If the evidence, in a hypothetical case, showed that a person was arrested and they had a crack pipe in their pocket, and they had a residue amount in it, and it could be measured, and it could be seen, is there anyone who could not convict a person, based on that--." [emphasis added] Appellant objected on the basis that the State was trying to commit the jury to a specific fact situation and the court overruled the objection.

By asking the veniremembers if they could convict based on the hypothetical given, the State was not explaining the law, but was seeking to commit the venire to a particular set of facts. The State inquired row by row asking the same question in different form. On one occasion it was asked, "Is there anybody who would be unable to convict somebody for possession of a residue amount of cocaine, ..." On another occasion it was asked, "... Is there anyone who would be unable to convict in this type of circumstance?" This type of questioning, using a hypothetical or otherwise, is improper and serves no purpose other than to commit the jury to specific set of facts prior to the presentation of any evidence at trial.

The State argues it used the fact specific hypothetical to explain the law as it pertains to possession of less than twenty-eight grams of cocaine and tried to determine if the jurors could apply the law to a residual amount. This assertion is supported by the record. For example, after the initial objection by defense counsel the State explained,

"Certainly a residue amount is not as much of an amount as, let's say, a usable quantity.

But under the eyes of the law--and the legislature has said, it doesn't matter how much cocaine it is, if it can be seen and it can be measured, that's possession of cocaine; and if it's proven, the person can be found guilty. Can you follow a law that says a person can be found guilty of possessing a residue amount?" [emphasis added]

However, this line of questioning occurred after the initial objection by defense counsel and does not excuse the improper question in which the hypothetical was used seeking to commit the veniremembers to the specific facts of the case. As a result of the improper question and the responses given by specific veniremembers, the State was able to challenge several jurors for cause and the jurors were dismissed. Just as the denial of a proper question by the trial court represents an abuse of discretion, Maddux, supra, so should the allowance of an improper question.

The court of appeals based its opinion on our holding in Shipley v. State, 790 S.W.2d 604 (Tex.Crim.App.1990). In Shipley, we held that control of the voir dire examination is within the sound discretion of the trial judge and that the trial judge is given wide discretion in this area. Although this is true, a trial judge must not exceed his...