NO. 778-99








Johnson, J., filed a dissenting opinion, in which Meyers, Price, and Holcomb, JJ., joined.

D I S S E N T I N G  O P I N I O N

I respectfully dissent. The majority's attempt to clarify what constitutes a commitment question simply muddies the issue more by attempting to create a bright-line standard. Just as defining a leading question as one which can be answered by "Yes" or "No" excludes many proper questions, so does defining a "proper" commitment question as one for which "one of the possible answers to that question must give rise to a valid challenge for cause." Ante, at ___ (slip op. at 7). At what point does a legitimate inquiry into relevant attitudes slide into an attempt to commit the juror to a given position? Certainly, if the question is filled with facts from the case, it may be clear that the question is an attempt at committing the juror, but a question in a child-molestation case which inquires whether the juror believes that no child could/would lie about such a thing is a legitimate attempt to probe beliefs and biases which might prevent the juror from considering the evidence in an appropriate manner.

The major flaw in the reasoning of the majority is that it begins with the assumption that the question in issue is a commitment question. I see no difference between the question at issue here ("Would you presume someone guilty if he or she refused a breath test on their refusal alone?") and the common voir questions, usually posed by the state, "Could you find someone guilty on the testimony of one witness" and "Could you find someone guilty on circumstantial evidence alone?" If those questions do not ask a juror to commit, then neither does the question at issue.

I further disagree with the majority that "What circumstances in your opinion warrant the imposition of the death penalty?" is in any way an attempt to commit the juror. It is an appropriate exploration of the juror's attitudes about the death penalty. A juror may respond that nothing warrants that sentence (state challenge for cause), or that any murder warrants that sentence (defense challenge for cause), or anything in between. There is nothing in that question that requires the juror "to resolve or refrain from resolving an issue." Ante, at ___ (slip op. at 3).

I also disagree that the question "Could you consider probation in a case where the victim is a nun?" is a commitment question. This question is no different than the question asked in Maddux v. State, 862 S.W.3d 590,591-92 (Tex. Crim. App. 1993) (whether a prospective juror could consider probation in a murder case in which a child had died), or the question approved by the majority, ante at ___ (slip op. at 3-4), "If the victim is a nun, could [you] be fair and impartial?" The question in issue would perhaps become a commitment question if it asked, "Would you give probation in a case where the victim is a nun?"

A juror must be able to consider the full range of punishment, that is, to be able to envisage a circumstance in which probation might be appropriate for the offense alleged. If the juror cannot envisage any circumstance in which probation would be appropriate for the charged offense, that juror cannot consider the full range of punishment and is not qualified to sit on the jury.

I also disagree with the assertion by the majority that, for a "commitment question" to be "proper," it must contain facts needed to mount a challenge for cause. This ignores the reality that challenges for cause are only part of the reason for voir dire; voir dire is also the process by which a defendant acquires the information with which to exercise his peremptory challenges in an intelligent fashion. It also ignores case law which has existed for more than fifty years, and which we reaffirmed earlier this year, recognizing that peremptory challenges exist not simply to remove jurors who should have been removed for cause, but also to eliminate jurors who are thought to unacceptable, though not objectionable, for any of a variety of reasons. Johnson v. State, 43 S.W.3d 1, 6 (Tex. Crim. App. 2001); see also Jones v. State, 982 S.W.2d 386, 393 (Tex. Crim. App. 1998), cert. denied, 528 U.S. 985, 120 S. Ct. 444, 145 L. Ed.2d 362 (1999); Martinez v. State, 763 S.W.2d 413, 415 n.2 (Tex. Crim. App. 1988). By restricting voir dire to questions dealing only with challenges for cause, today's decision conflicts with this case law.

The question at issue is just the sort of question which may help determine whether to use a peremptory challenge: an inquiry into the prospective juror's attitudes and beliefs about the defendant's exercise of a choice. Would the majority take the same position if the question at issue were, "Would you presume someone guilty if he or she refused to make a statement to the police?" I would hope not.

The court of appeals was correct in holding that the question at issue was a proper attempt to discover whether any venireperson would have an automatic predisposition to find a person guilty simply because he refused to take the breath test. I would affirm the judgment of the court of appeals. Because the majority does not do so, I dissent.

Johnson, J.

Date Delivered: October 31, 2001