Cohn v. State

• Decision Date: 24 January 1991
• Docket Number: B14-89-1058-CR,Nos. A14-89-1057-C,s. A14-89-1057-C
• Citation: 804 S.W.2d 572
• Parties: Michael Wayne COHN, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 572

804 S.W.2d 572

Michael Wayne COHN, Appellant, v. The STATE of Texas, Appellee.

Nos. A14-89-1057-CR, B14-89-1058-CR.

Court of Appeals of Texas Houston (14th Dist.).

Jan. 24, 1991.

Discretionary Review Granted

May 8, 1991.

Allen C. Isbell, Houston, for appellant.

Mary Lou Keel, Houston, for appellee.

Before J. CURTISS BROWN, C.J., and JUNELL and MURPHY, JJ.

OPINION

J. CURTISS BROWN, Chief Justice.

A jury convicted appellant of indecency with a child and injury to a child. The jury assessed punishment at eight years confinement for each of the two charges of indecency with a child, and five years confinement for injury to a child. In five points of error, appellant challenges the trial court's rulings on voir dire and the testimony of an expert witness. We affirm the judgment.

Appellant's first three points address alleged error in the trial court's rulings during voir dire. The right to be represented by counsel includes counsel's right to question the members of the jury panel to intelligently exercise peremptory challenges. Mathis v. State, 167 Tex.Crim. 627, 322 S.W.2d 629, 631 (1959). Although a trial court is given wide discretion to control the voir dire, the permissible areas of questioning are broad and cannot be unnecessarily limited. Id. at 635, 322 S.W.2d 629. A question is proper if it seeks to discover a juror's views on an issue applicable to the case. Allridge v. State, 762 S.W.2d 146, 163 (Tex.Crim.App.1988). A trial court abuses its discretion if it prevents the defendant's attorney from asking a proper question on voir dire. Shipley v. State, 790 S.W.2d 604, 608 (Tex.Crim.App.1990) (citing Allridge, 762 S.W.2d at 163).

Appellant's first point of error complains of the trial court's ruling sustaining the objection to the following question:

[Defense Counsel]: So the fact that somebody has perceived something in the home through either radio, VCR, cable television, the songs that children listen to today, Playboy Magazine, Hustler Magazine; the fact that they hadn't done it yet, does that mean that they can't lie about it?

Despite the trial court's ruling on this question, the record establishes that appellant's counsel was allowed to explore, at length, the potential jurors' attitudes concerning whether the children/complainants were capable of lying or of separating fact from fantasy. Since trial counsel was permitted to elicit information from which he could intelligently exercise appellant's peremptory strikes, no error was involved.

Appellant's second point concerns the following exchange:

[Defense Counsel]: I want to address one thing here and that was this morning we were all sitting here and there were some folks over here in the box and these folks are all the people, and the complaining witnesses and now they're not here but the fact that they were there and watching you all, does anybody have any problem with that or does anybody think that's going to put any undue pressure--

[Prosecutor]: Object [y]our [h]onor. These are witnesses to the case. That's an improper question to be asking these jurors.

The Court: Do you wnat [sic] to speak to that?

[Defense Counsel]: Yes, ma'am.

[Prosecutor]: At the bench.

(BENCH CONFERENCE CONDUCTED OUT OF THE PRESENCE AND HEARING OF THE JURY.)

[Prosecutor]: Your [h]onor, I'll object to the questions because the witnesses has [sic] as much right to be in here as anyone else. And, I would object to him trying to pin the jury down.

[Defense Counsel]: Your honor, it's a display of the affection and what's going on and their father rocking the son.

The Court: Keep your voice down. Yes, they're no longer in the courtroom and wasn't improper voir dire. [sic] It's a totally improper question and I don't think you want to go into that.

[Defense Counsel]: Yes, ma'am.

(BACK ON THE RECORD)

The trial court was within its discretion to prevent defense counsel from specifically tying his questions to the presence of the complaining witnesses in the courtroom. The trial court did not prohibit appellant's counsel from asking questions to determine whether any member of the panel might be biased simply by because the complaining witnesses were small children, or that their parents naturally displayed affection toward them. Defense counsel apparently chose not to pursue that area of inquiry. Accordingly, no error occurred.

Appellant next complains of the court's ruling on the objections to this question:

[Defense Counsel]: Has anybody recently read or heard on radio or tv any kind of case of sexual molestation of children?

The prosecutor objected to question as improper, and the trial court sustained the objection. The defense counsel then immediately rephrased the question and asked the panel, "[d]oes anybody have any knowledge of a case at the present time going on that would influence you as a juror in your verdict of being fair, concerning a case going on right now that impressed or just read about? [sic]" No one on the panel indicated that they had. Appellant's counsel was not forced to proceed without information necessary to intelligently exercise the peremptory strikes. Appellant's first three...