IN THE COURT OF CRIMINAL APPEALS

OF TEXAS




NO. 415-99

 

JOSE BARAJAS, Appellant


v.



THE STATE OF TEXAS




ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE EIGHTH COURT OF APPEALS

EL PASO COUNTY


Price, J., delivered the opinion of the Court, in which Keller, P.J., and Womack, Keasler, Hervey, and Cochran, J.J., join. Womack, J., filed a concurring opinion, in which Keller, P.J., and Cochran, J., joined. Johnson, J., concurs. Meyers, J., filed a dissenting opinion, in which Holcomb, J., joined.





During voir dire in the appellant's indecency with a child trial, his attorney tried to ask venire members if they could be fair and impartial in a case in which the victim was nine years old. The trial court did not permit the question. We granted review to determine whether the trial court abused its discretion. We conclude that it did not because the question was too vague to constitute a proper question.

The appellant was indicted for two counts of indecency with a child. Tex. Penal Code 22.11(a). At the time of the offense, the victim was nine years old. During voir dire, the trial judge denied defense counsel's request to ask whether the venire members could be impartial in an indecency case involving a victim who was eight to ten years old or, in the alternative, a victim who was nine years old. Defense counsel also requested and was not permitted to ask whether the venire members could consider probation in a case involving a victim who was eight to ten years old. (1) The jury found the appellant guilty and assessed punishment at ten years, probated.

On direct appeal, the appellant claimed that the trial court abused its discretion by disallowing his proffered questions. The appellant alleged that this error impaired the ability of his counsel to intelligently exercise his peremptory and for-cause challenges during jury selection.

The Court of Appeals, relying on Nunfio v. State, 808 S.W.2d 482, 485 (Tex. Crim. App. 1991), overruled on other grounds in, Gonzales v. State, 994 S.W.2d 170, 172 (Tex. Crim. App. 1999), (2) determined that the refusal to allow the appellant to ask voir dire questions regarding the victim's age was constitutional error. Barajas v. State, No. 08-97-00405-CR (Tex. App.--El Paso, Feb. 4, 1999) (not designated for publication). The Court of Appeals held that the error was one that defied a meaningful harm analysis, reversed the conviction, and remanded the case for a new trial. Id., slip op. at 5-6.

We granted the State's petition for discretionary review to determine whether the question was proper and whether the Court of Appeals performed a proper harm analysis. (3)

I. Legal Background

The trial court has broad discretion over the process of selecting a jury. Allridge v. State, 762 S.W.2d 146, 167 (Tex. Crim. App. 1988). The main reason for this is that voir dire could go on forever without reasonable limits. Faulder v. State, 745 S.W.2d 327, 334 (Tex. Crim. App. 1987). We leave to the trial court's discretion the propriety of a particular question and the trial court's discretion will not be disturbed absent an abuse of discretion. Allridge, 762 S.W.2d at 163; Faulder, 745 S.W.2d 334. A trial court's discretion is abused only when a proper question about a proper area of inquiry is prohibited. Allridge, 762 S.W.2d at 163.

A question is proper if it seeks to discover a juror's views on an issue applicable to the case. Smith v. State, 703 S.W.2d 641, 643 (Tex. Crim. App. 1985). An otherwise proper question is impermissible, however, if it attempts to commit the juror to a particular verdict based on particular facts. Standefer v. State, 59 S.W.3d 177, 181 (Tex. Crim. App. 2001). In addition, a voir dire question that is so vague or broad in nature as to constitute a global fishing expedition is not proper and may be prevented by the trial judge. Smith, 703 S.W.2d at 645.

One way a question can be relevant is if it seeks to uncover grounds for a challenge for cause. A venire member may be challenged for cause if: (1) he possesses a bias or prejudice in favor of or against the defendant, Tex. Code Crim. Proc. art. 35.16 (a)(9); (2) he possesses a bias against a phase of the law upon which the State or the defendant is entitled to rely, Tex. Code Crim. Proc. art. 35.16 (b)(3) & (c)(2); or (3) he has already decided the defendant's guilt or punishment, Tex. Code Crim. Proc. art. 35.16 (a)(10).

We have also held questions to be proper for the purpose of intelligently exercising of peremptory challenges. See, e.g., Hernandez v. State, 508 S.W.2d 853, 854 (Tex. Crim. App. 1974). Reliance on this basis provides no meaningful limit on questions to be asked for the intelligent use of peremptory challenges. The more intelligent or effective the question, the more likely it is that the question will commit the venire member to decide the case, or to refrain from deciding the case, on a basis not required by law.

For example, the most effective question would be "under the evidence that will be introduced in this case, would you convict the defendant?" Obviously, neither the State nor the defendant should be able to ask such a question. But the notion that any question is proper for the intelligent exercise of peremptory challenges means that the parties could ask such a question. Therefore, questions that are not clearly improper on some other basis may be asked for purposes of intelligently exercising peremptory challenges subject to reasonable time limits imposed by the trial court. See Ratliff v. State, 690 S.W.2d 597, 600 (Tex. Crim. App. 1985).

II. Relevant Question

We cannot be certain to what issue in the case the appellant's question was relevant. We can conceive of at least three objects of the question counsel wanted to ask: (1) whether venire members use the victim's age for an improper purpose during the guilt phase, (2) whether venire members use the victim's age in determining credibility of the victim-witness, and (3) whether venire members will use the victim's age in assessing punishment if the appellant is found guilty. We will address each of these potential objects.

A. Determining Guilt

The appellant may have wanted to determine whether venire members would consider the victim's age during the guilt phase of the trial. The victim's age is not a fact of consequence that tends to prove or disprove the appellant's guilt, except that, in this case, the State had to prove that the victim was under the age of seventeen. Tex. Penal Code 22.11(a). If a venire member stated that she would resolve the appellant's guilt on the basis of the victim's age, that venire member would be challengeable for cause. But that is not the question that the appellant asked. The trial court may, within its discretion, require that parties phrase questions in a way that is precise enough to glean relevant information from the venire member's answer.

B. Credibility

The appellant may have wanted to see whether venire members would decide the victim-witness's credibility on the basis of her age. In his brief, the appellant states that this is why he wanted to ask the question. Trial counsel in Hernandez v. State, 508 S.W.2d 853 (Tex. Crim. App. 1974), had a similar purpose when he requested to ask whether any venire members could not believe that a police officer would lie. Hernandez, 508 S.W.2d at 854. We concluded that the question was a proper one and in a proper form because the defendant was not seeking to commit the venire to a conclusion based on a given set of facts. But in that case, the question was precise; the appellant asked a question that focused the venire members' attention on a relevant issue. Again, we think that the trial court does not abuse its discretion when it requires parties to phrase their questions to glean relevant information.

C. Assessing Punishment

The age of a victim is a permissible consideration during the punishment phase. The jury need not decide or refrain from assessing the appellant's punishment on the basis of the age of the victim. See Tex. Code Crim. Proc. art. 37.07 3 (a)(1). If the appellant's aim was to determine whether venire members would consider the victim's age in assessing punishment, it was an improper pursuit. The appellant may not seek to commit venire members to assess or refrain from assessing punishment on this basis. Standefer, 59 S.W.3d at 181.

Our conclusion today that the appellant's question was improper conflicts with our holding in Nunfio v. State, 808 S.W.2d 482 (Tex. Crim. App. 1991), on which the Court of Appeals and the appellant rely. We will, therefore, address whether we should continue to observe the rule in Nunfio.

III. Nunfio

In Nunfio, we held that the question "can you be fair and impartial if the victim in this case is a nun?" was a proper question and the trial court erred to prohibit Nunfio's asking the question. In support of this holding we said:

[T]he 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. The question in this case was proper and, thus, error is shown.

Nunfio, 808 S.W.2d at 484-85 (citations omitted). We may overrule a prior case when the case was badly reasoned or is unworkable. Proctor v. State, 967 S.W.2d 840, 845 (Tex. Crim. App. 1998). The holding in Nunfio meets both criteria, and therefore, we overrule it.

A. Reasoning

Nunfio's holding was based on our conclusion that the question was similar to questions in other cases that we had held to be proper. The cases we cited were Abron v. State, 523 S.W.2d 405 (Tex. Crim. App. 1975), and Hernandez v. State, 508 S.W.2d 853 (Tex. Crim. App. 1974).

In Abron, we held that the trial court abused its discretion in prohibiting the defendant from asking the venire members whether they would be biased because the defendant was a black man and the victim a white woman. Abron, 523 S.W.2d at 407. We explained that this prohibition may have violated the Due Process Clause of the Fourteenth Amendment but definitely denied Abron the right to intelligently exercise his peremptory challenges.

In that case, the appellant attempted to ask a very specific question: whether the venire members would be biased against Abron because of his race and that of the victim. The question was precisely tailored to get to the heart of an issue relevant to the case. Abron does not support our holding in Nunfio.

In Hernandez, we held that the defendant should have been allowed to ask whether venire members could not believe that a police officer would lie. Hernandez, 508 S.W.2d at 854. We concluded that the question was a proper one and in a proper form because the defendant was not seeking to commit the venire to a conclusion based on a given set of facts. Once again, the question was specific and tailored to get to an issue relevant to the case. Hernandez does not support our holding in Nunfio.

The question in Nunfio was different from the questions in Abron and Hernandez because it was not narrowly tailored to an issue relevant to the case, and ; these cases do not provide authority for the holding in Nunfio that parties may ask whether a venire member can be impartial under a particular set of facts.

B. Unworkable Standard

Nunfio's holding provides no reasonable limitation on the parties' ability to ask questions. The question "can you be fair and impartial under a given set of facts?" can be repeated to include every fact in a given case. This "fair and impartial" question is a license to go fishing, without providing any concrete information for the intelligent use of peremptory or for-cause challenges. (4) We have held that counsel may not conduct fishing expeditions during voir dire.

In Boyd v. State, 811 S.W.2d 105, 119 (Tex. Crim. App. 1991) counsel inquired, "What I'm basically asking you is what you as layman think is a case that is proper for the death penalty to be imposed?" Counsel stated that he was eliciting "what factors [the veniremember] thinks ... would be things that would influence him in voting his verdict." Id. at 120. We held that "a vague question about 'what things' the veniremember thought were important in determining whether an individual should receive a death sentence, wholly unrelated to the sentencing scheme, amounts to a fishing expedition going beyond the scope of proper voir dire." Ibid. We concluded the question was improperly broad and the trial court did not abuse its discretion in disallowing it. Ibid.

In Smith v. State, 703 S.W.2d 641, 645 (Tex. Crim. App. 1985), the trial court did not permit the defendant to ask venire members what "their thoughts" were on the insanity defense. We held this inquiry was so broad that it was a global fishing expedition. Ibid. It did not "seek particular information from a particular panel member; rather, it present[ed] a general topic for discussion." Ibid.

More recently and in another context, we elaborated on the need for counsel to ask specific questions. In Gonzales v. State, 3 S.W.3d 915, 917 (Tex. Crim. App. 1999), we addressed the issue of jurors withholding information during voir dire. We held that the defendant failed to show a juror had withheld information because defense counsel's questions had been inadequate. We said "defense counsel has an obligation to ask questions calculated to bring out that information which might be said to indicate a juror's inability to be impartial, truthful, and the like." Ibid. We emphasized that "[c]ounsel must ask specific questions, not rely on broad ones," and that "counsel must ask follow-up questions." Ibid.

The question in Nunfio and the question in this case are like the questions in Boyd, Smith, and Gonzales. These questions constitute global fishing expeditions, and trial courts are within their discretion to prevent the questions.

IV. Conclusion

The trial court errs to prevent a party's asking proper questions, but the questions sought to be asked by the appellant in this case were not proper. The trial court is within its discretion to prevent fishing expeditions during voir dire that may extend jury selection ad infinitum. The trial court did not abuse its discretion.

The judgment of the Court of Appeals is vacated, and the case is remanded to that Court for review of the appellant's remaining points of error. (5)



Delivered: June 26, 2002.

Publish.

1. We held in Standefer v. State, 59 S.W.3d 177, 181 (Tex. Crim. App. 2001), that the parties may not ask whether venire members can consider probation under the particular facts of the case beyond the offense as charged in the indictment.

2. The Court of Appeals directly relied on Cena v. State, 960 S.W.2d 804 (Tex. App.--El Paso 1997), vacated on other grounds, 991 S.W.2d 283 (Tex. Crim. App. 1999), which relied on our opinion in Nunfio.

3. The exact grounds on which we granted review are:



(1) When a defendant is allowed the opportunity to ask offense-specific voir dire questions, namely, whether the jury panel could consider probation and be fair in an indecency with a child case where the victim is under age seventeen, does a trial court abuse its discretion in not allowing age-specific questions, namely, whether the jury could be fair and impartial and consider probation where the victim is eight-to-ten years old?



(2) Does a court of appeals err in reversing for jury voir dire error without performing a harm analysis?

4. We address the applicability to peremptory challenges because the appellant makes the argument that the question goes to the intelligent use of his peremptory challenges.

5. Because of our disposition of the State's first ground for review, we need not reach the second ground for review.