Harkey v. State

• Decision Date: 07 February 1990
• Docket Number: No. 3-88-225-CR,3-88-225-CR
• Parties: David A. HARKEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 876

785 S.W.2d 876

David A. HARKEY, Appellant, v. The STATE of Texas, Appellee.

No. 3-88-225-CR.

Court of Appeals of Texas,

Austin.

Feb. 7, 1990.

Charles Kimbrough, Blundell, Moore & Kimbrough, Lockhart, for appellant.

Jeffrey L. Van Horn, Criminal Dist. Atty., Lockhart, for appellee.

Before SHANNON, C.J., and JONES and ONION ^*, JJ.

ONION, Justice (Retired).

This is an appeal from a conviction for driving a motor vehicle while intoxicated. After the jury's verdict of guilty, the court assessed appellant's punishment at 180 days confinement in county jail and a fine of $750.00, but suspended the imposition of sentence and placed appellant on probation for two (2) years.

Appellant advances eleven points of error. We overrule the points of error and will affirm the judgment of conviction.

Initially, appellant complains the court restricted his voir dire examination and denied him the effective assistance of counsel. In his voir dire examination appellant's counsel informed the jury panel there would be no scientific test of alcohol in the case, and that an individual was not required to take a breath test.

Appellant's counsel then asked:

Now, given the fact that the amount of alcohol to make a person drunk varies, can any of you think of a reason why a person would not want to blow into that machine? ¹

The State's objections to this question were sustained. Appellant's counsel asked no further questions along this line.

A defendant's constitutional right to counsel includes the right of his counsel to question the members of the jury panel in order to intelligently exercise peremptory challenges, Easterling v. State, 710 S.W.2d 569 (Tex.Cr.App.1986), cert. denied, 479 U.S. 848, 107 S.Ct. 170, 93 L.Ed.2d 108 and challenges for cause, Smith v. State, 676 S.W.2d 379 (Tex.Cr.App.1984), cert. denied, 471 U.S. 1061, 105 S.Ct. 2173, 85 L.Ed.2d 490 (1985); De La Rosa v. State, 414 S.W.2d 668, 671 (Tex.Cr.App.1967). As a general rule, the trial court should give the defendant great latitude in questioning the jury panel. Trevino v. State, 572 S.W.2d 336 (Tex.Cr.App.1978); Beaver v. State, 736 S.W.2d 212, 214 (Tex.App.1987, no pet.). A trial court, however, can control the scope of the voir dire examination to limit improper interrogation, Smith v. State, 703 S.W.2d 641 (Tex.Cr.App.1985), and impose reasonable restrictions on the exercise of voir dire examination. Ratliff v. State, 690 S.W.2d 597 (Tex.Cr.App.1985); Williams v. State, 692 S.W.2d 671 (Tex.Cr.App.1984).

If a defendant's question is proper, an answer denied prevents the intelligent use of challenges. Powell v. State, 631 S.W.2d 169 (Tex.Cr.App.1982); Smith v. State, 513 S.W.2d 823, 827 (Tex.Cr.App.1974). However, the defendant must show that the question sought to be asked was a proper one in order to establish an abuse of discretion by the trial court. Smith, 703 S.W.2d at 643. A question is proper if it seeks to discover the views of the veniremen on an issue applicable to the case. Beaver, 736 S.W.2d at 214; Mathis v. State, 167 Tex.Crim. 627, 322 S.W.2d 629 (App.1959). If the question attempts to require the veniremen to commit themselves prior to trial as to how they would consider certain testimony, it is an improper question. Postell v. State, 663 S.W.2d 552 (Tex.App.1983), affirmed, 693 S.W.2d 462 (Tex.Cr.App.1985); Hughes v. State, 562 S.W.2d 857 (Tex.Cr.App.1978); Clem v. State, 166 Tex.Crim. 429, 314 S.W.2d 579 (App.1958).

Without explaining that the law permitted the admission of a failure to take a breath test, appellant's counsel asked the jury panel to assume a fact, and to indicate to him if they could think of a reason why anyone would not take such a test, or to give such reasons to counsel. Appellant's question as framed sought improper commitment. Questions asked in an improper form may be disallowed by the court. Hernandez v. State, 508 S.W.2d 853 (Tex.Cr.App.1974); Hunter v. State, 481 S.W.2d 137 (Tex.Cr.App.1972).

In oral argument before this Court, appellant's counsel conceded that the trial court did not prevent him from rephrasing his question or restrict further interrogation on the subject matter. He explained that he interpreted Campbell v. State, 685 S.W.2d 23 (Tex.Cr.App.1985), as holding that further interrogation on the subject matter constitutes a waiver of a previously preserved error. Counsel misreads Campbell, for it only held that once error is preserved, further interrogation on the subject matter is not essential to the continuation of the preservation of error. We conclude that the trial court did not abuse its discretion. Appellant's first point of error is overruled.

In points of error two through seven, appellant contends the trial court committed reversible error in denying challenges for cause to prospective jurors Patterson, Meyer and Livengood, because such jurors exhibited a bias and prejudice against him, and exhibited a bias and prejudice against a law upon which he was entitled to rely--the presumption of innocence.

After the prosecution had interrogated the jury panel, appellant's counsel asked the panel Now, I want to ask you, in spite of what we all have learned and grew up with about the presumption of innocence, does it look like to you that David must have done something wrong, he must be a little guilty of something or else he wouldn't even be here this morning sitting inside the rail, charged as a defendant in a criminal case? Anybody feel that way? How about the first section? Anybody feel that he must be a little bit guilty of something or he wouldn't be here today?

Veniremen Meyer, Livengood and Patterson raised their hands, and each later indicated it would take evidence to remove that feeling.

Subsequently, veniremen Meyer, Livengood and Patterson were individually summoned to the bench and questioned further by counsel. Patterson reconfirmed her earlier commitment to the presumption of innocence, and told the prosecutor she had misunderstood defense counsel's question, and the fact that appellant had been stopped "doesn't mean he is guilty of it ... but something." When asked what appellant would be guilty of before evidence was heard, Patterson responded that "He is not guilty of anything ... until the evidence is presented ... and then decided." The record then reflects:

MR. KIMBROUGH [defense counsel]: Well, what do you think--do you feel that he got caught doing something that he wasn't supposed to do or else he wouldn't be here?

PANEL MEMBER PATTERSON: Something questionable.

MR. KIMBROUGH: Uh-huh. Maybe not guilty of the offense charged, but he doesn't--he did something wrong or he wouldn't have been arrested and brought to court?

PANEL MEMBER PATTERSON: Right.

The prosecutor pointed out to the court that the answer was a perfectly reasonable reaction to the question asked. No one made any further explanation of the law, and no further questions were asked.

Venireman Meyer reconfirmed her belief in the presumption of innocence. She also said she misunderstood defense counsel's question and that was why she answered as she had: "What I understood him to say was that he had to do something wrong to be here ... I mean we wouldn't send a kid to the principal's office if they didn't do something wrong, you know.... I don't know what he is really accused of, if he is accused of all of it." Meyer then told the prosecutor she was willing to believe without reservation that appellant was innocent until proven guilty. Appellant's counsel asked no further questions.

Venireman Livengood also reconfirmed her belief in the presumption of innocence and was willing to apply it in the instant case. She likewise indicated she apparently misunderstood defense counsel's question. When asked if she believed appellant was "guilty of anything" or merely accused, Livengood guessed "he is accused," but when pressed she stated "... it is hard to answer." She thought she could wait for the evidence and be fair. When asked by defense counsel if she believed appellant had done something wrong, Livengood stated that she thought he must have done something to be stopped, a broken headlight, a law violation. When asked by the prosecutor if she thought appellant was guilty of any criminal violation "as he stands before you today," she answered "No." No further questions were asked.

Appellant challenged the three prospective jurors for cause because (1) they were biased and prejudiced against him and (2) were biased and prejudiced against the presumption of innocence--a law upon which he was entitled to rely. See Tex.Code Cr.P.Ann. art. 35.16(a)(9) and (c)(2) (1989). If error was committed, it was preserved under the rule in Payton v. State, 572 S.W.2d 677, 680 (Tex.Cr.App.1978); Johnson v. State, 713 S.W.2d 741 (Tex.App.1986, pet. ref'd).

The record, however, simply does not support appellant's claim that the three veniremen were biased and prejudiced against him. The trial court did not abuse its discretion in overruling the challenges for cause on this basis. We shall examine the second prong of the contention.

A potential juror's initial disagreement with any phase of the law relevant to a case does not merit a per se excusal for cause. Cockrum v. State, 758 S.W.2d 577, 586 (Tex.Cr.App.1988), and cases there cited. "Instead, further examination may reveal misapprehension of relevant substantive law, trial procedure, or even the meaning of counsels' questions." Cockrum, 758 S.W.2d at 586.

In Cockrum, 758 S.W.2d at 586, the venireperson said she would require some sort of evidence before she could vote to acquit. Continued interrogation revealed she was often confused by counsel's complicated questions and was unfamiliar with criminal procedure and jurors' obligations. Once those factors were clarified the venireperson answered she would not place any burden of proof upon the defendant. The court's refusal to excuse the venireperson for cause upon challenge was held not to be an...