II. Voir Dire

A. PROPER QUESTION/STATEMENT

Kirkham v. State, 632 S.W.2d 682 (Tex.App.-Amarillo 1982, no pet.).

Voir dire question, “Do you believe a person is best judge of whether they are intoxicated?” is proper and is not a comment on defendant’s right not to testify.

Vrba v. State, 151 S.W.3d 676 (Tex.App.-Waco 2004, pet. ref’d.).

The following questions asked by the prosecution were proper in that they were not “commitment questions:”

  • “What are some signs that somebody is intoxicated?”
  • “Who thinks that the process of being arrested would be something that might sober you up a little bit?”
  • “Why do you think someone should be punished?”
  • “Which one of these [four theories of punishment] is most important to you in trying to determine how someone should be punished and how much punishment they should receive?”

B. IMPROPER QUESTION/STATEMENT

Harkey v. State, 785 S.W.2d 876 (Tex.App.-Austin 1990, no pet.).

Defense attorney asking member of jury panel “if they could think of a reason why anyone would not take such a (breath) test” held to be improper in its “form”. 

Standefer v. State, 59 S.W.3d 177 (Tex.Crim.App. 2001). 

The question, “If someone refused a breath test, would you presume him/her guilty on their refusal alone?” was held to be improper as it constitutes an attempt to commit the juror. This case also reaffirms that a juror may permissibly presume guilt from evidence of a refusal to give a breath or blood test.

Davis v. State, No. 14-03-00585-CR, 2006 WL 2194708, (Tex.App.-Houston [14th Dist.] 2006, no pet.) (not designated for publication).

Even if State established that breath-testing device was functioning properly at the time of the test, that the test was properly administered, and that defendant’s test result was 0.08 or above, defendant was still entitled to challenge, and the jury to disbelieve, the reliability of the methodology used by the device, and State’s misstatements to the contrary during voir dire required reversal. 

C. CHALLENGE FOR CAUSE

  1. PRESUMPTION OF INNOCENCE
    • Harkey v. State, 785 S.W.2d 876 (Tex.App.-Austin 1990, no pet.). 
      • Jurors stating, in response to suggestion by defense counsel that defendant “must be guilty of something or he wouldn’t be there” did not provide a basis for challenge for cause.
  2. ONE WITNESS CASE
    • Zinger v. State, 932 S.W.2d 511 (Tex.Crim.App. 1996).
    • Leonard v. State, 923 S.W.2d 770 (Tex.App.-Fort Worth 1996, no pet.).
    • Castillo v. State, 913 S.W.2d 529 (Tex.Crim.App.1995).
    • Garrett v. State, 851 S.W.2d 853 (Tex.Crim.App.1993).
      • Statement by venire person that “testimony of one witness would not be enough for him to convict even if that testimony proved all elements beyond a reasonable doubt” may make that juror challengeable for cause but be very careful and read the above cases before you try it.
  3. JURORS WHO WOULD REQUIRE BREATH TEST TO CONVICT
    • McKinnon v. State, No. 05-03-00671-CR, 2004 WL 878278 (Tex.App.-Dallas 2004, pet. ref’d) (not designated for publication).
      • Question of, “Would you require the State to bring you a blood or breath test?” is not improper “commitment question,” and a juror that says that they would not be able to convict without such a test is subject to a challenge for cause.
    • Fierro v. State, 969 S.W.2d 51 (Tex.App.-Austin 1998, no pet.).
      • Prospective juror who stated he would be unable to convict in the absence of a breath test was challengeable for cause as he had a bias against a phase of the law on which the State was entitled to rely. He would be holding State to a higher level of proof of intoxication than the law required.
  4. JURORS ABILITY TO CONSIDER FULL RANGE OF PUNISHMENT
    • Glauser v. State, 66 S.W.3d 307 (Tex.App.-Houston [1st Dist.] 2000, pet. ref’d).
      • This was an Intoxication Manslaughter where the trial court properly denied the defense attorney’s challenge for cause on jurors who could not consider probation under the specific facts of the case being tried that went beyond the elements of the offense. The Court cited the standard set out in Sadler v. State, 977 S.W.2d 140 (Tex.Crim.App.1998) which said that a prospective juror is not challengeable for cause because he or she will use facts to determine punishment. A prospective juror is not challengeable for cause based on inability to consider the full range of punishment so long as he or she can consider the full range of punishment for the offense as defined by law. The proper question to determine bias against the law regarding punishment is “Whether in a proper intoxication manslaughter case as defined by statute, where the facts justify it, the venire person could fully and fairly consider the entire range of punishment, including the minimum and maximum.”
  5. BIAS TOWARDS POLICE OFFICERS DOES NOT ALWAYS MAKE JURORS CHALLENGEABLE
    • Madrid v State, NO. 01-15-00977-CR, 2017 Tex. App. LEXIS 3979, 2017 WL 1629515 (Tex. App. – Houston 2017)
      • During jury selection one of the venire members stated that he would give police officers more credibility as he holds them in high regard. The same venire member also stated that he could uphold the oath and render a true verdict. The trial court did not err in denying the defendant’s challenge for cause due to the fact that the venire member was able to follow the law provided by the court. 
    • Simpson v. State, 447 S.W.3d 264 (Tex.Crim.App. 2014). 
      • During voir dire jurors stated the following: “Police officers are more credible and their training causes their testimony to carry more weight”; “If unsure who to believe, would go with police officer’s testimony because they are more credible”; “Being a trained police officer, they would have the benefit of any doubt.” Court found these answers did not render the jurors challengeable for bias when followed by a promise not to prejudge credibility of any witness = vacillating. Court held it does not require complete impartiality as it is human nature to give one category of witness a slight edge over another.
  6. LYING TO THE COURT DOES NOT AUTOMATICALLY MAKE A JUROR “DISABLED” WITHIN THE MEANING OF CCP 36.29
    • Price v. State, No. 14-15-00987-CR, 2017 Tex. App. LEXIS 6301, 2017 WL 2959636 (Tex. App.- Houston 2017)
      • In this capital murder case, one of the empaneled jurors disclosed to other jurors that he had seen news coverage of the case, however, he did not discuss any details of what he had seen. Another juror reported this information to the court. When the Court asked the juror about it, he denied having seen any news coverage or hearing anyone else discussing it. This juror was also asked if there was anything that tainted his view of the evidence and whether or not he could still follow the oath that you’ll decide the case on the evidence you see and hear in the courtroom, along with the law given to by the court. The juror stated that he could. The trial court denied the defense’s motion to disqualify the juror on the basis that article 39.29 had not been satisfied. The Court made clear that there is a distinction between a venireperson being disqualified and juror being disabled from sitting. Although lying to the court would have made venreperson subject to a challenge for cause, it does not render a juror disabled from sitting.

D. DEFENDANT HAS SIXTH AMENDMENT RIGHT TO A PUBLIC TRIAL = VOIR DIRE

Cameron v. State, 535 S.W.3d 574, (Tex.App. – San Antonio 2017)

The Sixth Amendment right to a public trial extends to voir dire. In this case, the friends and family of the Defendant were instructed by the bailiff to leave the courtroom in order to accommodate a large venire panel. The family believed they were not allowed to re-enter the courtroom. The defense objected to a violation of the Defendant’s right to a public trial. The court repeatedly stated that the courtroom was not “closed” but there was NO room for the family or any other members of the public. In addition, after the venire panel was seated, the family was never advised that they could re-enter the courtroom. This court held that the Defendant met her burden and that the courtroom had been “closed”. The court revered the murder conviction.

See Johnson v. United States, 520 U.S. 461 , 117 S. Ct. 1544, 137 L.Ed. 2d 718 (1997) and Presley v. Georgia, 558 U.S. 209, 130 S. Ct. 721, 175 L.Ed 2d 675 (2010).