Tijerina v. State

• Decision Date: 13 July 2006
• Docket Number: No. 2-04-391-CR.,2-04-391-CR.
• Citation: 202 S.W.3d 299
• Parties: DEBRA TIJERINA, Appellant, v. THE STATE OF TEXAS, State.
• Court: Texas Court of Appeals

202 S.W.3d 299

DEBRA TIJERINA, Appellant, v. THE STATE OF TEXAS, State.

No. 2-04-391-CR.

Court of Appeals of Texas, Second District, Fort Worth.

Delivered: July 13, 2006.

Panel B: DAUPHINOT, WALKER, and McCOY, JJ.

OPINION ON REHEARING

SUE WALKER, Justice.

Following the issuance of our original opinion, the State filed a motion for rehearing arguing that the error in the case was harmless. We deny the State's motion for rehearing, but we withdraw our opinion and judgment issued February 2, 2006, and substitute the following in their place to more fully address the harm analysis.

I. INTRODUCTION

Appellant Debra Tijerina appeals her conviction for possession of methamphetamine of less than one gram. The controlling issue in this appeal is whether a distinction exists between the voir dire question in this case—"Is there anybody here who feels that you would automatically disbelieve somebody simply because they are a convicted felon, be they a witness, a police officer, a defendant, anybody?"—and the voir dire question—"Do each of you feel as though you could evaluate a witness and his testimony and decide if he's being truthful without automatically dismissing his testimony because of some criminal history?"—which the court of criminal appeals held in Lydia v. State was a commitment question. 109 S.W.3d 495, 499 (Tex. Crim. App. 2003). Because we perceive no distinction between these questions, we hold that the question in this case was a commitment question, we follow our analysis in Lydia on remand, and we conclude that the trial court abused its discretion by prohibiting the defense from asking the question. See Lydia v. State, 117 S.W.3d 902, 904 (Tex. App.-Fort Worth 2003, pet. ref'd). We apply the harm analysis as instructed by the court of criminal appeals in Rich v. State, and we hold that Tijerina's substantial rights were affected by this error. See 160 S.W.3d 575, 577-78 (Tex. Crim. App. 2005). Accordingly, we reverse the trial court's judgment and remand the case for a new trial.

II. FACTUAL AND PROCEDURAL BACKGROUND

Two Fort Worth police officers stopped Tijerina in her car after observing her drive the wrong way against traffic. Carla Canada was riding in the passenger seat. While one officer ran a check of the information Tijerina gave him, the other officer saw Tijerina reach into a purse sitting on the center console, pull out a day planner, and place it between some bags in the backseat. The officers arrested Tijerina because she had outstanding warrants for her arrest. A subsequent search of the car revealed a baggie of methamphetamine next to the day planner in the backseat and two baggies containing methamphetamine residue inside the day planner. The State charged Tijerina with possession of methamphetamine of less than one gram, and the indictment included an enhancement paragraph alleging Tijerina had two prior felony convictions for forgery by possession of a check with intent to pass. Tijerina pleaded not guilty.

During voir dire, Tijerina's defense counsel asked one of the venire members if he would "automatically disbelieve somebody simply because they are a convicted felon," and the State did not object to this question. The following exchange then took place:

[DEFENSE COUNSEL]:. . . . Is there anybody here who feels that you would automatically disbelieve somebody simply because they are a convicted felon, be they a witness, a police officer, a defendant, anybody?. . . .

[PROSECUTOR]: Judge, I object to that statement, invading the province of the jury, certainly entitled to assess credibility however they like and we object on those grounds.

THE COURT: Sustained.

[DEFENSE COUNSEL]: I would ask that question of each and every juror if I were given the opportunity. Is the Court telling me I can't?

THE COURT: I would sustain the objection.

After both sides made their challenges, Tijerina's defense counsel moved to quash the panel and for a mistrial, reiterating his desire to ask whether the venire members "would simply disbelieve a witness simply because they were a convicted felon." The trial court denied his requests. He then asked to reopen voir dire to ask the question as he had just stated it, and the trial court again denied his request.

III. PROPER COMMITMENT QUESTION

In her first point, Tijerina contends that the trial court erred by sustaining the State's objection to defense counsel's question in voir dire regarding whether potential jurors would automatically disbelieve a convicted felon. The State responds that the question was an improper commitment question because it did not lead to a valid challenge for cause or, in the alternative, that Tijerina was not harmed by the trial court's ruling prohibiting defense counsel from asking the question.

A. Standard of Review Concerning Voir Dire Questions

A trial court has broad discretion over the process of selecting a jury. Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002); Allridge v. State, 762 S.W.2d 146, 167 (Tex. Crim. App. 1988), cert. denied, 489 U.S. 1040 (1989); Lydia, 117 S.W.3d at 904. We leave to the trial court's discretion the propriety of a particular question, and the trial court's discretion will not be disturbed on appeal absent an abuse of that discretion. Sells v. State, 121 S.W.3d 748, 755 (Tex. Crim. App.), cert. denied, 540 U.S. 986 (2003); Barajas, 93 S.W.3d at 38; Allridge, 762 S.W.2d at 163; Lydia, 117 S.W.3d at 904. A trial court abuses its discretion only when it prohibits a proper question about a proper area of inquiry. Barajas, 93 S.W.3d at 38; Allridge, 762 S.W.2d at 163.

B. Standefer Analysis

The determination of whether a question propounded to venire members during voir dire is a proper commitment question is a three-part inquiry. See Standefer v. State, 59 S.W.3d 177, 182-83 (Tex. Crim. App. 2001); see also Lydia, 117 S.W.3d at 905. In Standefer, the court of criminal appeals held that a trial court should first determine if a question is a commitment question. 59 S.W.3d at 182-83. A commitment question is one that commits a prospective juror to resolve, or refrain from resolving, an issue a certain way after learning a particular fact. Id. at 179. If a question is a commitment question, then the court must decide whether it is nevertheless a proper question. Id. at 181-82. For a question to be a proper commitment question, one of the possible answers to the question must give rise to a valid challenge for cause. Id. at 182. However, even if a question meets the "challenge for cause" requirement, the inquiry does not end there. Id. A proper commitment question must also contain only those facts necessary to test whether a prospective juror is challengeable for cause. Id.

Either side may challenge a juror for cause when it can show that the juror is incapable or unfit to serve on the jury. TEX. CODE CRIM. PROC. ANN. art. 35.16 (Vernon Supp. 2005). A juror may be challenged for cause if either side can show "[t]hat the juror has a bias or prejudice in favor of or against the defendant." Id. art. 35.16(a)(9). "A challenge for cause is only proper based on bias if a prospective juror harbors an automatic predisposition toward one view of witness credibility based upon knowledge of a certain fact about the witness." Harris v. State, 122 S.W.3d 871, 880 (Tex. App.-Fort Worth, 2003, pet. ref'd) (emphasis added). The court of criminal appeals has held that a potential juror may be properly challenged for cause and removed "if he cannot impartially judge the credibility of a witness." Ladd v. State, 3 S.W.3d 547, 560 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1070 (2000). This means that "jurors must be open-minded and persuadable, with no extreme or absolute positions regarding the credibility of any witness." Id.

In this court's original opinion in Lydia, we held that the question, "Do each of you feel as though you could evaluate a witness and his testimony and decide if he's being truthful without automatically dismissing his testimony because of some criminal history?" was not a commitment question.¹ See 81 S.W.3d 486, 492 (Tex. App.-Fort Worth 2002, pet. ref'd), vacated, 109 S.W.3d at 495. The court of criminal appeals granted Lydia's petition for discretionary review and held that the question was a commitment question because it "asked whether the prospective juror would resolve the issue of witness credibility based on a particular fact—the witness'[s] criminal history." Lydia, 109 S.W.3d at 499-500. The court of criminal appeals remanded the case to this court for an analysis under the remaining prongs of the Standefer test. Id. On remand, we held that the commitment question met the remaining two prongs of Standefer; it would lead to a proper challenge for cause based on a juror's bias, and it included only those facts necessary to test whether a prospective juror was challengeable for cause. See Lydia, 117 S.W.3d at 904, 905-06. Consequently, we held that the trial court did not abuse its discretion by permitting the State to ask this proper commitment question during voir dire. Id.

Here, the voir dire question that defense counsel sought to ask is substantially the same as the question the State asked in Lydia. Tijerina is a convicted felon, so the defense wanted to know whether potential jurors would automatically disbelieve a witness's (i.e., the defendant's) testimony because of the witness's status as a felon. We see no distinction between the question here, "Is there anybody here who feels that you would automatically disbelieve somebody simply because they are a convicted felon, be they a witness, a police officer, a defendant, anybody?" and the question in Lydia, "Do each of you feel as though you could evaluate a witness and his testimony and decide if he's being truthful without automatically dismissing his testimony because of some criminal history?" Accordingly, we hold that the question at issue here is a commitment question because it asked...