Hernandez v. State

• Decision Date: 24 April 1974
• Docket Number: No. 47764,47764
• Citation: 508 S.W.2d 853
• Parties: Fidel Lozano HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 853

508 S.W.2d 853

Fidel Lozano HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.

No. 47764.

Court of Criminal Appeals of Texas.

April 24, 1974.

Rehearing Denied May 22, 1974.

Sam C. Bashara, San Antonio, for appellant.

Ted Butler, Dist. Atty., Gordon Armstrong, Stephen P. Takas, Jr., Stephen Allison, Asst. Dist. Atty., San Antonio, Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ROBERTS, Judge.

The appellant was convicted of the offense of sale of heroin. The court assessed his punishment at fifteen years' imprisonment.

In view of our resolution of the contention urged in appellant's second ground of error, we need not discuss the other matters raised in his brief.

Appellant contends that the trial court unduly restricted his right to voir dire examination when he was not allowed to ask a certain question of the prospective jurors.

The question sought to be propounded was as follows:

'Is there any member of the panel who, regardless of what the evidence showed in any case, could not believe that a police officer was telling a willful falsehood from the witness stand?'

This Court has repeatedly held that the right to propound questions on voir dire, in order to intelligently exercise peremptory challenges, is of the greatest importance. See the discussion and cases cited in De La Rosa v. State, 414 S.W.2d 668 (Tex.Cr.App.1967). While we have held that a showing of injury is necessary when the right is restricted, Crowson v. State, 364 S.W.2d 698 (Tex.Cr.App.1963), and that there is no error when an improperly framed question is denied, Hunter v. State, 481 S.W.2d 137 (Tex.Cr.App.1972), we have not retreated from the holdings of the cases cited in De La Rosa v. State, supra.

The court erred in refusing to allow the question to be asked.

In Hunter v. State, supra, the question sought to be propounded was as follows:

'By virtue of your personal knowledge of the truthfulness of Mr. Booe, would you place greater credence on his testimony than you would on someone who contradicted him whom you did not know?'

Our opinion emphasized that the question was improper As framed, and by this emphasis clearly implied that such a question would not be Per se improper. The question, by its specificity, clearly required a prospective juror to commit himself in answering it. The question in the instant case, however, merely inquires of a prospective juror, in general terms, whether he could conceive of the possibility that a police officer-witness might lie from the stand.

Further, unlike the situation in Crowson v. State, supra, we have not been presented with a record showing no injury.

As in De La Rosa v. State, supra, this appellant filed a written motion requesting the court's permission to ask the question at issue on voir dire. The motion was denied. Appellant then sought additional peremptory challenges, which were denied. He then sought to perfect a bill of exception, while the prospective jurors were present, showing what their answers would have been. The court refused to allow him to do so. He later informed the court that he had been required to take two objectionable jurors. Finally, the court refused to honor his request that a transcript of the voir dire examination be included with the record on appeal. As in De La Rosa v. State, supra, this appellant has, in effect, been denied an effective opportunity to show harm. See also Mathis v. State, 167 Tex.Cr.R. 627, 322 S.W.2d 629 (1959).

For the reasons stated, the judgment is reversed and the cause remanded.

ODOM, Judge (concurring).

I concur in the opinion of the majority that reversal is called for due to the trial court's improper restriction of appellant's voir dire examination of the prospective jurors. While the defense should be permitted to ascertain whether prospective jurors would give unwavering credibility to any witness because of his membership in a class, such as peace officer or minister, regardless of what the evidence may show, no particular form of question is being enshrined as being always in order. As the dissent properly points out, the jury selection process is already, in many cases, too long and drawn out. I do not understand the majority position, however, as adding a particular question to some check list of permissible questions, each of which may in every case be asked. The trial court properly may limit examination of prospective jurors to reasonable bounds to avoid undue prolongation, and within reasonable bounds counsel has the duty to budget his time. But when counsel is not prolonging the examination beyond reasonable bounds, he may pose any proper question he desires. The majority, as I understand it, holds the propounded question was proper in all respects.

I therefore concur.

MORRISON, J., joins in this concurrence.

DOUGLAS, Judge (dissenting).

The majority by its opinion allows counsel for the defense to try the prospective witnesses in advance of the trial. The logical conclusion from such holding is that counsel for the State may try prospective defense witnesses before selecting the jury. Would it now follow the majority opinion for the prosecutor to ask the prospective jurors if a defendant became a witness whether they could believe that he would tell a falsehood from the witness stand? Would not the same question be proper concerning the mother, wife, or other prospective witnesses for a defendant?

Under our procedure, we now have a two-stage or bifurcated trial. Under the decision of the majority, it appears that we will probably have a four-stage...