Maddux v. State

• Decision Date: 20 February 1992
• Docket Number: No. 01-89-00621-CR,01-89-00621-CR
• Parties: Clayton Allen MADDUX, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 511

825 S.W.2d 511

Clayton Allen MADDUX, Appellant, v. The STATE of Texas, Appellee.

No. 01-89-00621-CR.

Court of Appeals of Texas Houston (1st Dist.).

Feb. 20, 1992.

Rehearing Denied March 19, 1992.

Published in Part Pursuant to Tex.R.App.P. 90.

Michael B. Charlton, Charles F. Baird, Houston, for appellant.

John B. Holmes, Jr., Winston E. Cochran, Jr., Joan Campbell, Houston, for appellee.

Before MIRABAL, DUGGAN and O'CONNOR, JJ.

OPINION

MIRABAL, Justice.

A jury found appellant, Clayton Allen Maddux, guilty of murder. The jury assessed punishment at 30-years confinement. We affirm.

In his sixth point of error, appellant asserts the trial court abused its discretion in preventing him from asking a proper question on voir dire. Specifically, he complains the trial court prevented him from questioning the venire members on whether the fact a young child had been killed would influence their consideration of probation. The victim in the present case was a two-and-a-half year-old girl.

The standard of review in a case where the defendant claims he was improperly restricted on voir dire is whether the trial court abused its discretion. Nunfio v. State, 808 S.W.2d 482, 484 (Tex.Crim.App.1991).

During voir dire, appellant's counsel questioned the venire at length about their general willingness to consider probation in a murder prosecution. Appellant's counsel asked venirepersons if, in the event they found a person guilty of murder, they could consider as little as five-years probation and no fine in a proper case. Appellant's counsel then asked those venirepersons who had indicated they could consider five-years probation, whether they were thinking only of a mercy killing situation. Appellant's counsel then asked:

[By Defense Counsel]: Now then, we're not talking about any particular case. It would be improper to do that. But in a hypothetical case where there was a murder conviction and a child had died, how many of you would still be able to consider probation?

[By Prosecutor]: I object as being an improper--

The Court: Sustained, committing the jury to specific facts.

[By Defense Counsel]: In a hypothetical situation assuming that fact, and that fact alone, everything else was the same, the only fact that's different is that a child died, how many of you would still be able to consider as little as five years probation?

[By Prosecutor]: I object as being improper question, asking the jury to commit themselves to specific facts in a case.

The Court: Sustained.

[By Defense Counsel]: I'd like for the record to reflect I would like to ask that question of each and every juror.

The Court: It's--the ruling stands.

Appellant challenged for cause most of the venirepersons who had indicated an unwillingness to consider probation in a murder case. The venirepersons were questioned further by the judge at the bench, and those who maintained they could not consider five-years probation in any murder conviction case were dismissed for cause. Those who said they would listen to the facts and consider probation based on the facts, were not dismissed for cause. None of the venirepersons were allowed to answer whether they could consider probation if the murder victim was a child.

Questions asked of potential jurors are to enable the intelligent exercise of peremptory challenges and to establish a basis for a challenge for cause. Abron v. State, 523 S.W.2d 405, 408 (Tex.Crim.App.1975). The right to pose such questions is part of the right to counsel under article I, section 10 of the Texas Constitution. Mathis v. State, 576 S.W.2d 835, 836 (Tex.Crim.App.1979); Florio v. State, 568 S.W.2d 132, 133 (Tex.Crim.App.1978). When it is contended that a question was not permitted that would have enabled the intelligent exercise of peremptory challenges, both the requirements of the due process clause of the United States Constitution and the right to counsel guaranteed by the Texas Constitution must be satisfied. Abron, 523 S.W.2d at 408.

It is properly within a trial court's discretion to impose reasonable restrictions on the exercise of voir dire examination. Clark v. State, 608 S.W.2d 667, 669 (Tex.Crim.App.1980). A trial court may properly (1) place reasonable time limits on the voir dire examination, (2) prevent the propounding of vexatious or repetitious questions, (3) disallow questions asked in an improper form, and (4) restrict inquiry into the personal habits of venirepersons, as opposed to inquiry into personal prejudices or moral beliefs. Abron, 523 S.W.2d at 408.

To show an abuse of discretion, a defendant must demonstrate that the question he sought to ask was proper. If the question was proper and the defendant was prevented from asking it, then harm is presumed because the defendant could not intelligently exercise his peremptory challenges without the information gained from an answer. Smith v. State, 703 S.W.2d 641, 643 (Tex.Crim.App.1985); Bonilla v. State, 740 S.W.2d 583, 584 (Tex.App.--Houston [1st Dist.] 1987, pet. ref'd).

A proper question is defined as one that seeks to discover a juror's views on an issue applicable to the case. Nunfio, 808 S.W.2d at 484; Smith, 703 S.W.2d at 643. Bias against the range of punishment and the punishment philosophy of jurors, are proper areas of inquiry for voir dire. Smith, 703 S.W.2d at 644-45; Mathis, 576 S.W.2d at 836-37. It is not improper to question potential jurors about their attitude on probation, if probation is within the scope of punishment that will be considered by the jury in the event of conviction. Mathis, 576 S.W.2d at 839; Rodriguez v. State, 513 S.W.2d 22, 26 (Tex.Crim.App.1974).

In the present case, the State argues that although appellant was entitled to question the venirepersons about their willingness to consider probation in a murder case, appellant was not entitled to ask a hypothetical question that was based on the facts peculiar to the case on trial. The State relies on White v. State, 629 S.W.2d 701 (Tex.Crim.App.1981), cert. denied, 456 U.S. 938, 102 S.Ct. 1995, 72 L.Ed.2d 457 (1982). There, the trial court sustained the State's objection when the defense counsel asked a venireperson if he would be unable to consider a life sentence if it was proved that the defendant went into a store, attempted to rob it or robbed it, aimed a pistol at a woman's head at short range and shot her, killing her instantly, and if the woman's husband testified to that. These were the facts of the case. The Court of Criminal Appeals held there was no error in refusing to let the defense counsel ask a hypothetical question that was based on facts peculiar to the case on trial. White, 629 S.W.2d at 706; see also Cuevas v. State, 742 S.W.2d 331, 345 n. 13 (Tex.Crim.App.1987), cert. denied, 485 U.S. 1015, 108 S.Ct. 1488, 99 L.Ed.2d 716 (1988). Such a question is improper because, by such specificity, a juror is being required to commit himself in answering it, in advance of hearing the evidence. Hernandez v. State, 508 S.W.2d 853, 854 (Tex.Crim.App.1974).

Appellant argues the present case is distinguishable from White because defense counsel emphasized the hypothetical nature of the questions and did not provide details of the offense, such as the victim's age of two years or her relationship to appellant. Appellant argues that his counsel properly sought to establish prejudice based upon the victim's status as a child, just as defense counsel, in the recent case of Nunfio v. State, asked questions regarding a hypothetical victim's status as a nun.

In Nunfio, the trial court granted the State's motion in limine, ruling that the defense counsel could not ask the venire, in a case involving an aggravated sexual assault on a nun, whether, in a hypothetical case, the victim's status as a nun would affect their ability to be fair and impartial. The Court of Criminal Appeals held:

Here, the question posed by appellant's counsel sought to determine potential bias or prejudice in favor of the victim by virtue of her vocation. Similar inquiries have been held to be proper. See, e.g., Abron v. State, 523 S.W.2d 405 (Tex.Crim.App.1975) (reversed rape conviction because trial court disallowed defendant's question to venire whether it would make a difference that the black defendant was accused of raping a white victim); Hernandez v. State, 508 S.W.2d 853 (Tex.Crim.App.1974) (reversed conviction because of trial court's refusal to allow defendant to ask venire if they could believe a police officer might lie under oath). The question in this case was proper and, thus, error is shown.

Nunfio, 808 S.W.2d at 484-85.

In the present case, the venire had been read the indictment, and therefore was aware appellant had been accused of murdering Krysti Lynette Irle by striking her head against an object or by shaking her. No mention was made of the victim's age. Appellant argues that "clearly, a child's murder can inflame venirepersons," just as a nun's status as the victim of a sexual assault can result in bias or prejudice.

We note Nunfio, Abron, and Hernandez are distinguishable to the extent the forbidden inquiry in each of those cases prevented defense counsel from determining jury bias in favor of categories of persons who would be witnesses: e.g., nun versus layperson in Nunfio, police officer versus ordinary citizen in Hernandez, white woman versus black man in Abron. If the present case had involved an aggravated sexual assault on a child, or some other offense in which the child complainant was a prospective witness, then defense counsel would have been entitled to question the venire members concerning bias for or against the child witness. Such is not the case presented here.

Applying the general rule set out in White and Cuevas, we hold appellant's question regarding "a hypothetical case where there was a murder conviction and a child died " was an improper question based on facts peculiar to the case on trial. Counsel had been permitted to...