Martinez v. State
| Decision Date | 07 November 1979 |
| Docket Number | No. 2,No. 61547,61547,2 |
| Citation | 588 S.W.2d 954 |
| Parties | Jesus Ovalles MARTINEZ, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
Martin Underwood, court appointed, Comstock, Roy E. Greenwood, Austin, for appellant.
Thomas F. Lee, Dist. Atty., Del Rio, Robert Huttash, State's Atty., Austin, for the State.
Before ODOM, TOM G. DAVIS and CLINTON, JJ.
This is an appeal from a conviction for the offense of burglary of a habitation wherein the jury assessed appellant's punishment, enhanced by one prior felony conviction, at confinement in the Texas Department of Corrections for a term of twenty years.
At the outset appellant contends that the trial court erred in denying him an opportunity to voir dire the jury panel on the full range of punishment in that the trial court overruled his motion to inform the jury panel of the range of punishment applicable to an offense which is enhanced by one prior felony conviction. We agree and, accordingly, reverse the judgment below.
The record reflects that appellant filed a pretrial motion denominated "Motion Giving Notice of Defendant's Intent to Inform Jury Panel on Voir Dire of Range of Punishment," which provided in pertinent part:
The motion was denied by the trial court, a ruling complained of by appellant in his motion for new trial.
In its remarks to the panel, the trial court did not touch on punishment. However, prospective jurors were informed by the prosecution during voir dire examination that the offense on trial is a first degree felony punishable by imprisonment from five to ninety-nine years or life and qualified them on that basis. 1 In his turn appellant pretermitted any mention of punishment, thereby avoiding being repetitive of the explanation made by the State and also deferring to ruling of the trial court denying his motion for leave to inform the prospective jurors of enhanced range of punishment. At the punishment phase, 2 of course, the jury was charged on enhancement. 3
The question thus presented is whether, in the circumstances of this case, appellant was erroneously denied a fair opportunity to interrogate prospective jurors on matters of punishment in order intelligently to exercise his right to challenge for cause or peremptorily?
Bias or prejudice regarding the law applicable to punishment is statutorily specified as a ground for challenge for cause by the State and the accused, Article 35.16(b)3 and (c)2, V.A.C.C.P., and is a proper area of inquiry for peremptory challenges as well as for cause, Mathis v. State, 576 S.W.2d 835 (Tex.Cr.App.1979); Smith v. State, 513 S.W.2d 823, 826 4 (Tex.Cr.App.1974); Reeves v. State, 491 S.W.2d 157, 161 5 (Tex.Cr.App.1973). As to aspects of punishment relating to the primary offense the law in this respect is free from any doubt, and the test for ascertaining harm in such cases is "whether the trial judge's limitation of the Voir dire examination amounted to an abuse of discretion, thus depriving appellant of a valuable right," Emanus v. State, 526 S.W.2d 806, 808 (Tex.Cr.App.1975).
That the punishment ultimately assessed by a jury is one of two or more alternatives it is properly authorized to select has dictated that counsel for the parties be permitted to make appropriate inquiries concerning the alternatives, notwithstanding their conditional or contingent application. Thus, views concerning the former suspended sentence law were examined in Plair v. State, 102 Tex.Cr.R. 628, 279 S.W. 267 (Tex.Cr.App.1925); attitude towards probation was explored in Houston v. State, 496 S.W.2d 94, 95 6 (Tex.Cr.App.1973); feelings about assessing a minimum punishment should have been allowed in Mathis v. State, supra. It is the availability of alternatives, yet an uncertainty at the time of voir dire examination of their final determination by the jury, that render the examination as to possible punishments necessary the occasion, under our system of jury trial, will never again be presented.
So it was, we discern, that the Court came to hold recently in Bevill v. State, 573 S.W.2d 781, 783 (Tex.Cr.App.1978) that there was a "valid reason" to permit the State to explain to a jury panel the range of punishment applicable where one prior conviction was alleged in the indictment pursuant to V.T.C.A. Penal Code, § 12.42. The Court pointed out that the jury must answer the factual inquiries of whether enhancement allegations are true and when it found but one was true:
Bevill specifically notes the provisions of Article 36.01, § 1, V.A.C.C.P., that preclude reading enhancement allegations to the jury until the punishment hearing begins, 7 but clearly the Court was not inhibited by them, or by prior expressions of opinion concerning them, in coming to the conclusion it did. Statements of the rule in, e. g., Castillo v. State, 494 S.W.2d 844, 845 8 (Tex.Cr.App.1973) and Heredia v. State, 508 S.W.2d 629 9 (Tex.Cr.App.1974), that enhancement allegations must not be read to the jury at the outset of trial are not contradicted by the holding of Bevill that both the State and the accused have the right "to inform" the jury of the range of punishment applicable to an enhanced offense under Section 12.42(a), (b) or (c), supra, and to qualify it on the full range of punishment. Certainly, one can Inform generally of applicable punishment without Reading the precise allegations for enhancement, and thereby avoid what some have regarded as jeopardizing the presumption of innocence. 10 Thus harmonizing the Bevill conclusion and the Castillo rule, we adhere to both and hold that the admonition of Article 36.01, § 1, supra that unless otherwise excepted allegations of prior convictions for purpose of enhancement under Section 12.42(a), (b) or (c), supra, shall not be read to the jury until hearing on punishment is held is not offended by either the State or the accused informing and qualifying prospective jurors as to the full range of punishment applicable to the enhanced offense in order intelligently to exercise peremptory challenges. 11
Accordingly, we conclude that refusal of the trial court to allow appellant to inform and to question prospective jurors concerning the minimum punishment for the enhanced offense deprived him of a valuable right 12 and was, therefore, an abuse of discretion. 13 Mathis v. State, supra, 576 S.W.2d at 839, Mathis v. State, 167 Tex.Cr.R. 627, 322 S.W.2d 629, 631-632 (1959) and cases cited in each.
Judgment of the trial court is reversed and the cause remanded.
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