Maddux v. State

• Decision Date: 09 June 1993
• Docket Number: No. 875-92,875-92
• Citation: 862 S.W.2d 590
• Parties: Clayton Allen MADDUX, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 590

862 S.W.2d 590

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

No. 875-92.

Court of Criminal Appeals of Texas,

En Banc.

June 9, 1993.

Rehearing Denied Oct. 6, 1993.

Michael B. Charlton, on appeal only, Brian C. Wice, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and Karen A. Clark and Joan Campbell, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Jeffery Van Horn, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

MALONEY, Judge.

A jury convicted appellant of murder and assessed punishment at thirty (30) years imprisonment. TEX.PENAL CODE ANN. § 19.02. In a partially published opinion, the First Court of Appeals affirmed with one justice dissenting. Maddux v. State, 825 S.W.2d 511 (Tex.App.--Houston [1st Dist.] 1992). We granted appellant's petition for discretionary review to determine whether our holding in Nunfio v. State, 808 S.W.2d 482 (Tex.Crim.App.1991) is applicable to nontestifying witnesses such as deceased victims. ¹ We hold that it is.

During the voir dire examination, the trial judge informed the venire members that the applicable range of punishment was a minimum of five (5) years probation to a maximum of life imprisonment and a $10,000 fine. Defense counsel unsuccessfully attempted to ask the venire if they could consider probation in a murder case where the deceased was a child:

[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?

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

THE COURT: Sustained, committing the jury to specific facts.

[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?

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

THE COURT: Sustained.

[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.

The deceased in this case was approximately two and one-half years old. The First Court of Appeals held that the trial court did not abuse its discretion in preventing defense counsel from asking the venire members questions regarding a victim's status as a child. Appellant argues that the victim's status as a child is a proper area of inquiry just as questions regarding the victim's status as a nun were proper in Nunfio.

In Nunfio the trial court prevented defense counsel from inquiring whether the venire could be fair and impartial in a hypothetical aggravated sexual assault where the victim was a nun. The victim testified at trial that "she was a Roman Catholic and a 'member of [the] Ursuline Order which is a congregation of religious women in the Catholic Church.' " Nunfio, 808 S.W.2d at 483. This Court held that the question was proper citing Abron v. State, 523 S.W.2d 405 (Tex.Crim.App.1975) (trial court erred in refusing to allow defense counsel to inquire about potential racial bias towards a rape victim who was of a different race than the defendant) and Hernandez v. State, 508 S.W.2d 853 (Tex.Crim.App.1974) (trial court erred in refusing to allow defense counsel to inquire about potential bias in favor of a witness who was also a police officer).

Here, the Court of Appeals attempted to distinguish Nunfio, as well as Abron and Hernandez. The court reasoned that in each of those cases the defense counsel sought to elicit potential bias regarding a complainant who was also a witness:

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.

Maddux, 825 S.W.2d at 515 (emphasis in original). Justice O'Connor dissenting noted that:

[n]othing in Nunfio supports the majority's holding that the nun's role as a witness (rather than her role as a victim) was the issue. Under the majority's analysis, a defendant may question the venire about its potential bias for or against a person who will be a witness, but not about the venire's bias for or against a person who was the victim.

Id. at 517 (O'Connor, J., dissenting).

We agree with Justice O'Connor; nothing in Nunfio distinguishes between victims who testify and those who do not. While it may be true that the police officer's status as a witness was significant in Hernandez, the complainant's status as a victim was the controlling factor in both Abron and Nunfio. Indeed, the question in Nunfio was proper because it "sought to determine potential bias or prejudice in favor of the victim by virtue of her vocation." Nunfio, 808 S.W.2d at 484 (emphasis added). Similarly, the question sought to be asked in this case was proper because it sought to elicit potential bias in favor of the deceased's status as a child. ² The credibility of a complainant as a witness is not at issue here; we are merely reaffirming our holding in Nunfio that defense counsel is entitled to discover a veniremember's bias in favor of the complainant's status, e.g., as a nun in Nunfio, or in this case, as a child.

The State argues that the question was an impermissible attempt by defense counsel to commit the venire to a particular sentence given particular facts. ³ Saunders v. State, 780 S.W.2d 471, 476 (Tex.App.--Corpus Christi 1989), rev'd on other grounds, 840 S.W.2d 390 (Tex.Crim.App.1992). We disagree.

In Saunders, the trial court had previously informed the venire of the victim's age when defense counsel attempted to ask the venire whether they could give that particular defendant probation even though that particular victim was a five month old child. The Thirteenth Court of Appeals held that the question was an improper attempt to commit the venire to a specific verdict given specific facts. Here, the venire was not aware of the deceased's age or even that the deceased was a child, defense counsel did not mention the facts of this case, and he did not specifically refer to appellant or to the deceased.

We emphasize, as does Judge Campbell in his concurring opinion, that we are not in any way abrogating the long standing rule prohibiting counsel from committing the veniremembers to a certain verdict given particular facts. See, e.g., Allridge v. State, 762 S.W.2d 146, 162-64 (Tex.Crim.App.1988), cert. denied, 489 U.S. 1040, 109 S.Ct. 1176, 103 L.Ed.2d 238 (1989); 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); Williams v. State, 481 S.W.2d 119, 121 (Tex.Crim.App.1972); Saunders, 780 S.W.2d at 476.

We hold that the trial court abused its discretion when it prevented defense counsel from asking his question. The denial of a proper question during voir dire examination is always reversible error; it is not subject to a harm analysis under TEX.R.APP.P. 81(b)(2). Nunfio, 808 S.W.2d at 485. Accordingly, we reverse the judgment of the Court of Appeals and remand this cause to the trial court for a new trial.

BAIRD, J., not participating.

MILLER, Justice, concurring.

While I agree with Judge Campbell's analysis that today's majority opinion should not be read to abrogate the rule which seeks to prevent attorneys from committing prospective jurors to a particular verdict, and while it seems that our analysis must, necessarily, proceed on a case-by-case basis, I write separately to emphasize that what little amount of guidance that has been provided in the area of peremptory strike analysis should be explicated in order to aid practitioners, and also that the law should allow more extensive questioning than it now does.

The concept of allowing a defendant's counsel to effectively and intelligently exercise peremptory challenges is one of great importance under the Texas Constitution. ¹ Unlike the mandated list of challenges for cause found in article 35.16 of the Texas Code of Criminal Procedure, practically no instruction is provided for counsel seeking to fruitfully assert, via the use of peremptory strikes, a client's rights. Cf. TEX.CODE CRIM.PROC.ANN. art. 35.16 (Vernon supp.1992); and Butler v. State, 830 S.W.2d 125, 130 (Tex.Crim.App.1992) (Article 35.16 is a complete list of challenges for cause). With few exceptions, counsel is permitted to question venirepersons on virtually any area which will aid in the intelligent use of peremptory challenges, as long as the trial court considers the question proper. "A question is proper if its purpose is to discover a juror's views on an issue applicable to the case." McCarter v. State, 837 S.W.2d 117, 121 (Tex.Crim.App.1992) (quoting Ex Parte McKay, 819 S.W.2d 478, 482 (Tex.Crim.App.1990) (plurality) and citing Nunfio v. State, 808 S.W.2d 482, 484 (Tex.Crim.App.1991)); Shipley v. State, 790 S.W.2d 604, 608 (Tex.Crim.App.1990); Allridge v. State, 762 S.W.2d 146, 163 (Tex.Crim.App.1988); Smith v. State, 703 S.W.2d 641, 644 (Tex.Crim.App.1985). Thus, "[t]he trial court must not restrict proper questions which seek to discover a juror's views on an issue applicable to the case." Id. at 121-22 (citing Boyd v. State, 811 S.W.2d 105, 118 (Tex.Crim.App.1991) (trial judge may impose reasonable time limits on voir dire), cert. denied, sub. nom. Boyd v. Texas, 502 U.S. 971, 112 S.Ct. 448, 116 L.Ed.2d 466 (1991)); but cf. Woolridge v. State, 827 S.W.2d 900, 905-06 (Tex.Crim.App.1992) (improper for trial judge to impose restrictions based on the mere possibility that the otherwise proper question might lengthen the voir dire...