Menchaca v. State

• Decision Date: 27 April 1995
• Docket Number: No. 08-93-00217-CR,08-93-00217-CR
• Citation: 901 S.W.2d 640
• Parties: Leonel Jasso MENCHACA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 640

901 S.W.2d 640

Leonel Jasso MENCHACA, Appellant, v. The STATE of Texas, Appellee.

No. 08-93-00217-CR.

Court of Appeals of Texas El Paso.

April 27, 1995.

M. Clara Hernandez, El Paso County Public Defender, El Paso, for appellant.

Jaime E. Esparza, Dist. Atty., El Paso, for State/appellee.

Before BARAJAS, C.J., and LARSEN and McCOLLUM, JJ.

OPINION

BARAJAS, Chief Justice.

Leonel Jasso Menchaca appeals his conviction for the offense of possession of more than five but less than fifty pounds of marihuana. Trial was by jury before the Honorable Virgil E. Mulanex, judge, sitting on assignment. Upon a finding of guilty, the trial court assessed punishment at incarceration in the Institutional Division of the Texas Department of Criminal Justice for a period of ten years, probated for a like term. We affirm the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

At 5:20 on the morning of November 28, 1992, Appellant presented himself for customs inspection at the Paso del Norte Bridge, an international port of entry connecting El Paso, Texas, with adjacent Ciudad Juarez, Chihuahua, Mexico. Alone in a 1982 Pontiac station wagon, Appellant declared that he was a United States citizen and that he was bringing nothing into the country. The customs inspector observed that the car bore temporary (paper) Texas license plates, the key that operated it was the only one on the key chain to which it was attached, and that Appellant appeared nervous in that his hands were shaking and he avoided making eye contact. When questioned, Appellant stated that he had only borrowed the car from a friend and was taking it to Deming, New Mexico. His suspicion aroused, the customs inspector asked Appellant to open the vehicle's trunk. While Appellant complied, the inspector opened the passenger side door and observed a small cylindrical object wrapped in gray duct tape underneath the right front fender. The inspector then fetched Appellant from behind the car, escorted him to a nearby building for questioning, and drove the vehicle to a secondary inspection area. With the aid of a trained canine, inspectors found other objects, similarly packaged and secreted, containing 49.5 pounds of marihuana.

During questioning, Appellant claimed the car belonged to Ramon Huerta, from whom he obtained the vehicle in a Juarez bar at 4:00 that morning. Appellant told inspectors that Huerta had remained in Juarez a short while to bid farewell to "a lady friend." Appellant planned to cross into the United States, wait for Huerta at the first street into El Paso, and drive with him to Deming or Hatch, New Mexico, to pick chiles. Documents found in the glove compartment indicated Ramon Huerta had recently purchased the vehicle and that it was registered in his name.

Later investigation revealed that Appellant, contrary to his earlier assertions, was not a United States citizen. A search of his wallet produced a stub from a paycheck issued by a New Mexico farm, which indicated Appellant had been paid by the bucket, presumably for picking chiles.

II. DISCUSSION

Appellant attacks his conviction in eight points of error. In his first point of error, Appellant claims the trial court erred by curtailing his voir dire examination of the 45-person venire after some 32 minutes of questioning. The trial court allowed each party 30 minutes in which to question the venire as a whole. The trial court informed Appellant's counsel when two minutes remained in her allotted time and, after those two minutes elapsed, informed her that her time had expired, which precipitated a bench conference outside the jury's hearing. During the bench conference, the trial court admitted into evidence eight pages of hand-written questions counsel was planning to ask of the venire. The trial court determined that only the subjects of immigration status and the right not to testify had not been reached, and allowed counsel two additional minutes to examine the venire about these subjects. During the additional time, counsel questioned the venire as a whole, and three venirepersons individually, about the right not to testify and the manner in which it might apply to Appellant. The trial court then informed counsel that her time had once again expired, which precipitated yet another bench conference during which the trial court offered to itself question the venire about immigration status on counsel's behalf ¹. With counsel's consent, the trial court asked if immigration status would affect a venireperson's service, to which question one venireperson responded affirmatively.

A defendant's constitutionally guaranteed right to counsel encompasses the right to question prospective jurors in order to intelligently and effectively exercise peremptory challenges and challenges for cause. Ex parte McKay, 819 S.W.2d 478, 482 (Tex.Crim.App.1990); Mata v. State, 867 S.W.2d 798 (Tex.App.--El Paso 1993, no pet.). Both the State and the defendant must be allowed to explore any attitudes of venirepersons that might render them challengeable for cause or otherwise subjectively undesirable as jurors. Draughon v. State, 831 S.W.2d 331, 334 (Tex.Crim.App.1992), cert. denied, 509 U.S. 926, 113 S.Ct. 3045, 125 L.Ed.2d 730 (1993). The parties' rights coexist with the trial court's right to control voir dire examination, which is entrusted to its sound discretion and which extends to imposing reasonable limitations on the time for which counsel may question the venire. Caldwell v. State, 818 S.W.2d 790, 793 (Tex.Crim.App.1991), cert. denied, 503 U.S. 990, 112 S.Ct. 1684, 118 L.Ed.2d 399 (1992); Allridge v. State, 762 S.W.2d 146 (Tex.Crim.App.1988), cert. denied, 489 U.S. 1040, 109 S.Ct. 1176, 103 L.Ed.2d 238 (1989). The benefits realized from measures employed to control the voir dire process must not, however, be attained at the risk of denying to a party a substantial right. Smith v. State, 703 S.W.2d 641, 645 (Tex.Crim.App.1985).

When a party challenges a trial court's limitation on the voir dire process, the reviewing court must analyze the claim under an abuse of discretion standard, the focus of which is whether the appellant proffered a proper question concerning a proper area of inquiry. Caldwell v. State, 818 S.W.2d at 793; Cockrum v. State, 758 S.W.2d 577, 584 (Tex.Crim.App.1988), cert. denied, 489 U.S. 1072, 109 S.Ct. 1358, 103 L.Ed.2d 825 (1989). If a proper question is disallowed, harm is presumed because the party has been denied the ability to intelligently exercise his peremptory strikes. Smith v. State, 703 S.W.2d at 643; Allridge v. State, 762 S.W.2d at 163. Thus, in order to decide if the trial court erred by disallowing a party's voir dire request, the reviewing court must first determine if he proffered a proper question. A proper question is one that seeks to discover a venireperson's views on an issue applicable to the case. Caldwell v. State, 818 S.W.2d at 794; Guerra v. State, 771 S.W.2d 453, 468 (Tex.Crim.App.1988), cert. denied, 492 U.S. 925, 109 S.Ct. 3260, 106 L.Ed.2d 606 (1989).

We do not undertake a systematic analysis of the extent to which Appellant complied with the foregoing requirements because, assuming he did, we find Appellant's first point of error controlled by Cantu v. State, 842 S.W.2d 667 (Tex.Crim.App.1992), cert. denied, 509 U.S. 926, 113 S.Ct. 3046, 125 L.Ed.2d 731 (1993), which involved the denial of an explicit request for additional time to question a particular venireperson about the effect of the defendant's voluntary intoxication. The Court applied the foregoing principles and determined that such a denial did not amount to an abuse of discretion. The Court found significant the trial court's decision to grant additional time after the defendant's originally allotted 30 minutes had expired, and the trial court's questioning of the venireperson about his general ability to follow the law and instructions given him by the court, which questioning came after the trial court's interruption and served as a sort of surrogate screening process.

Like Cantu, the instant case involves the denial of additional time to question venirepersons about a given subject ². In both cases, the trial court granted one extension of time to conduct further questioning. Both cases also involve questioning by the trial court after it put an end to a party's voir dire examination. Further, the instant case features a mitigating factor not present in Cantu: the opportunity to individually question particular venirepersons without interruption at the bench. The record reflects that Appellant's counsel so questioned at least ten venirepersons after her general examination of the venire had ceased, without apparent interruption or limitation by the trial court. Given the significance that Cantu attributes to the trial court's beneficence in granting one extension of time and its surrogate questioning of a venireperson, the latter of which we find equally applicable to the trial court's questioning of the venire as a whole, and Appellant's additional opportunity to question individually venirepersons at the bench, we find the trial court did not abuse its discretion in denying Appellant's implicit request ³. Accordingly, Appellant's first point of error is overruled ⁴.

In his third through seventh points of error, Appellant claims the trial court erred in admitting into evidence a hand-written letter found in the glove compartment of the car he was driving ⁵. When inspectors presented it to Appellant, he denied knowledge of it. Significantly, when one inspector read the letter out loud, Appellant helped him decipher several words he had difficulty reading. The inspector testified that Appellant seemed to anticipate the letter's wording, completing words when the inspector had only pronounced part of them.

We generally review a trial court's evidentiary rulings for an abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 378-380 (Tex.Crim.App.1990); ...