Opinion
No. 06-03-00250-CR
Submitted: October 4, 2004.
Decided: March 16, 2005. DO NOT PUBLISH.
On Appeal from the 202nd Judicial District Court, Bowie County, Texas, Trial Court No. 02F0369-202.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
Because of a broken radio, Jeffrey Boone assaulted a prison guard and inflicted several serious injuries. A jury found Boone guilty of assault on a public servant, found the enhancements to be true, and assessed punishment at eighty-five years' imprisonment. Boone appeals alleging that the trial court (1) improperly instructed the jury as to the appropriate range of punishment and (2) abused its discretion in disallowing a voir dire question concerning the views of the potential jurors on the credibility of prison guards. We affirm the judgment of the trial court. 1. Boone's Sentence Is Lawful and Egregious Harm Has Not Been Shown Boone first complains the trial court improperly instructed the jury as to the appropriate range of punishment. The State alleged two prior felony convictions, and the trial court instructed the jury as to the punishment range for a felony enhanced by two prior felony convictions under Section 12.42(d) of the Texas Penal Code. See TEX. PEN. CODE ANN. § 12.42(d) (Vernon Supp. 2004-2005). Because the prior convictions were not in the right sequence for habitual status, Boone could not be legally sentenced under Section 12.42(d). The first prior felony conviction must become final before the commission of the second felony in order to allow enhancement under Section 12.42(d). Section 12.42(d) of the Texas Penal Code provides:
If it is shown on the trial of a felony offense . . . that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by imprisonment in the institutional division of the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years.Id. If the second felony offense is committed before the conviction for the first felony offense becomes final, Section 12.42(d) does not apply. While the indictment appears to allege a valid enhancement on its face, the evidence at trial conclusively proved that Section 12.42(d) does not apply to Boone. While the enhancement under Section 12.42(d) is improper, the next question is whether the sentence is unlawful. If a punishment is not authorized by law, the sentence is "void" and error need not be preserved at the trial court level. Hern v. State, 892 S.W.2d 894, 896 (Tex.Crim.App. 1994); see Scott v. State, 988 S.W.2d 947, 948 (Tex.App.-Houston [1st Dist.] 1999, no pet.). But see Speth v. State, 6 S.W.3d 530, 532 (Tex.Crim.App. 1999) (objections to community supervision must be preserved at trial court level). The sentence in question is within the permissible range of punishment. Aggravated assault on a public servant is a first-degree felony. See TEX. PEN. CODE ANN. § 22.02 (Vernon Supp. 2004-2005). Since Boone was convicted of a first-degree felony, the maximum punishment was life or ninety-nine years' imprisonment. See TEX. PEN. CODE ANN. § 12.32 (Vernon 2003). Because the sentence is within the permissible range of the correct enhancement, the sentence is not unlawful. Now we conduct a harm analysis regarding the erroneous jury instruction as to the minimum range of punishment. The trial court instructed the jury that, if it found the enhancement paragraphs true, Boone was subject to a term of imprisonment "of not more than ninety-nine (99) years or less than twenty-five (25) years." The correct instruction would have informed the jury that Boone was subject to life or not more than ninety-nine years' or less than fifteen years' imprisonment. A jury charge's purpose is to instruct the jury on applying the law to the facts of the case. Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Crim.App. 1994); Taylor v. State, 146 S.W.3d 801 (Tex.App.-Texarkana 2004, no pet.). If the trial court did not properly instruct the jury on the law applicable to the case, then doubt is cast on the integrity of the verdict. Id. Because no objection was made to the erroneous charge, error was not preserved. Therefore, we must determine whether the incorrect instruction resulted in "egregious harm." Egregious harm results from errors that deny the defendant a "fair and impartial trial," "go to the very basis of the case," "deprive the defendant of a `valuable right,'" or "vitally affect his defensive theory." Almanza, 686 S.W.2d at 172. To determine whether there was egregious harm, we consider (1) the entire jury charge, (2) the evidence on contested issues and the weight of probative evidence, (3) counsel's argument, and (4) any other relevant information in the record. Bailey v. State, 867 S.W.2d 42, 43 (Tex.Crim.App. 1993); Taylor, 146 S.W.3d at 810. Boone has not shown that the error resulted in egregious harm. Even though the jury was instructed that Boone's minimum sentence was twenty-five years' imprisonment, the jury assessed punishment at eighty-five years' imprisonment. Given the severity of the sentence assessed in relation to the instructed minimum sentence, egregious harm has not been shown. See Holt, 899 S.W.2d at 25 (finding eighty year sentence on first-degree felony improperly enhanced under Section 12.42(d) harmless beyond a reasonable doubt). We note that "[e]gregious harm is a difficult standard to prove and such a determination must be done on a case-by-case basis." Hutch, 922 S.W.2d at 171. Because the sentence is lawful and egregious harm resulting from the erroneous jury charge has not been shown, we overrule Boone's first point of error. 2. No Abuse of Discretion Concerning Voir Dire Question Boone argues, in his second point of error, that the trial court prevented him from asking a proper question during voir dire which kept him from finding potential challenges for cause and intelligently exercising his peremptory strikes. Boone contends the question, although a commitment question, could have provided a basis for a legitimate challenge for cause and, therefore, the trial court abused its discretion in sustaining the objection. We review the trial court's decision to sustain the objection under an abuse of discretion standard. Allridge v. State, 762 S.W.2d 146, 163 (Tex.Crim.App. 1988). During voir dire, Boone's attorney informed the potential jurors that most of the witnesses in the trial would be either prison guards or inmates, that they would not know anything about the witnesses other than the "general label that they're either a guard or convicted felon," and asked the potential jurors, "How reliable do you believe a prison guard's testimony is: (1) [sic] very unreliable, unreliable, reliable, or very reliable." When the State objected to the question on the basis that the question was an impermissible commitment question, the trial court sustained the objection. The Texas Court of Criminal Appeals has defined commitment questions as questions that "commit a prospective juror to resolve, or to refrain from resolving, an issue a certain way after learning a particular fact." Woods v. State, 152 S.W.3d 105 (Tex.Crim.App. 2004); Lydia v. State, 109 S.W.3d 495, 499 (Tex.Crim.App. 2003); Standefer v. State, 59 S.W.3d 177, 179 (Tex.Crim.App. 2001). "[A]lthough commitment questions are generally phrased to elicit a yes or no answer, an open-ended question can be a commitment question if the question asks the prospective juror to set the hypothetical parameters for his decision-making." Standefer, 59 S.W.3d at 180. Generally, commitment questions should not be allowed unless the law requires the juror to make the commitment. Id. Not all commitment questions are improper. "A commitment question can be proper or improper, depending on whether the question leads to a valid challenge for cause." Lydia, 109 S.W.3d at 498. The inquiry for improper commitment questions has two steps: "(1) Is the question a commitment question, and (2) Does the question include facts — and only those facts — that lead to a valid challenge for cause?" Standefer, 59 S.W.3d at 182. When a potential juror indicates that he or she would always believe a police officer, the potential juror is expressing a bias against the defendant and should be struck for cause. Hernandez v. State, 563 S.W.2d 947, 950 (Tex.Crim.App. 1978). On the other hand, a tendency to believe or disbelieve the testimony of a police officer more than other witnesses may be sufficient to justify the trial court in excusing the potential juror for cause, but does not require the juror to be excused for cause. Compare Leach v. State, 770 S.W.2d 903, 907 (Tex.App.-Corpus Christi 1989, pet. ref'd), with Smith v. State, 907 S.W.2d 522, 530 (Tex.Crim.App. 1995), and Zakkizadeh v. State, 920 S.W.2d 337, 339-40 (Tex.App.-Houston [1st Dist.] 1995, no pet.). The question includes more facts than would be necessary to give rise to a challenge for cause. A proper commitment question must contain only those facts necessary to test whether a prospective juror is challengeable for cause. Standefer, 59 S.W.3d at 182. Boone's attorney asked the question in the context of the previous dialogue which informed the juror that he or she would know nothing about the witness other than he was a prison guard. The fact that the juror would know nothing about the witness other than the "general label" that he or she is a prison guard is not necessary to give rise to a challenge for cause. The Texas Court of Criminal Appeals has ruled an improper commitment question was asked when a prosecutor posed to a jury panel, "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?" See Lydia, 109 S.W.3d at 496. The Texas Court of Criminal Appeals held that, although the question was not in the normal form for a commitment question, it nonetheless tended to commit potential jurors to evaluating witness credibility in a certain way. On the authority of Lydia, we hold that the question posed by Boone's counsel was an improper commitment question. Though the question before us was in a different form than the usual commitment question and than that used in Lydia, it nonetheless tended to commit potential jurors to a certain way of evaluating witness credibility beyond anything required by law. The trial court was correct in its ruling. We overrule Boone's second point of error. We affirm the judgment of the trial court.
Boone fractured several of the guard's ribs, broke his nose, and inflicted multiple fractures around the guard's right eye. As a result, the prison guard's lung collapsed, and he was hospitalized for several days.
The evidence shows that the commission of Boone's second previous felony offense occurred before the conviction for the first previous felony offense. The State entered into evidence Boone's "pen packs" for cause numbers 458871 and 490604. In cause number 458871, Boone was convicted October 31, 1986, for attempted murder which occurred September 18, 1986. In cause number 490604, Boone was convicted April 11, 1988, for the offense of aggravated robbery, which he committed April 28, 1986. While the conviction for the second prior felony offense did occur after the conviction for the first prior felony offense, the law requires that the commission of the second prior felony offense occur after the conviction of the first prior felony offense. The evidence conclusively established that the commission of the second prior felony offense, committed April 28, 1986, occurred before the October 31, 1986, conviction for the first felony offense.
We note that a plea of true to the enhancement paragraph will relieve the State of its burden to prove a prior conviction alleged for enhancement. Manning v. State, 112 S.W.3d 740, 744 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd); Washington v. State, 59 S.W.3d 260, 264 (Tex.App.-Texarkana 2001, pet. ref'd). Further, a defendant cannot complain on appeal that the evidence is insufficient to prove the prior conviction or convictions if he or she entered a plea of "true." Chandler v. State, 21 S.W.3d 922, 923 (Tex.App.-Houston [14th Dist.] 2000, no pet.); see Dinn v. State, 570 S.W.2d 910, 915 (Tex.Crim.App. 1978); Harrison v. State, 950 S.W.2d 419, 421 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd). However, if the record affirmatively reflects that the enhancement does not apply, the improper enhancement can be reversible error even when the defendant pled true to the enhancement. Sanders v. State, 785 S.W.2d 445, 448 (Tex.App.-San Antonio 1990, no pet.) (record affirmatively showed that prior conviction was not final despite defendant's plea of true).
Boone could have been subject to an enhancement for one prior felony conviction under Section 12.42(c)(1). See TEX. PEN. CODE ANN. § 12.42(c)(1) (Vernon Supp. 2004-2005).
We are to perform one of two error analyses, depending on whether the error was preserved. Hutch v. State, 922 S.W.2d 166, 170 (Tex.Crim.App. 1996); see also Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App. 1986). If error was preserved, we are to reverse if "the error is not harmless." Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984) (op. on reh'g). If, however, error is not preserved, we are to reverse only if the error causes "egregious harm." Hutch, 922 S.W.2d at 171; Almanza, 686 S.W.2d at 171; Taylor, 146 S.W.3d at 803. In either case, the degree of harm shown by the appellant must be actual, not merely theoretical. Almanza, 686 S.W.2d at 174; Taylor, 146 S.W.3d at 804.
The parties argue we should apply the error analysis under Rule 44.2(b) of the Rules of Appellate Procedure. See TEX. R. APP. P. 44.2(b). Several Texas cases have applied the ordinary harmless error analysis to erroneous instructions as to the correct range of enhancement without discussion of Almanza. See Holt v. State, 899 S.W.2d 22, 25 (Tex.App.-Tyler 1995, no pet.); Fortier v. State, 105 S.W.3d 697, 700 (Tex.App.-Amarillo 2003, pet. ref'd). However, error was preserved in these cases. Since the error occurred in the jury charge and no objection was made to the enhancement instruction, the Almanza egregious harm error analysis should apply.
We note that convictions erroneously alleged for enhancement purposes were still lawfully before the jury as part of Boone's prior criminal record. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3 (Vernon Supp. 2004-2005).