Opinion
No. 01-10-00397-CR
Opinion issued June 16, 2011. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 228th District Court, Harris County, Texas, Trial Court Case No. 1214852.
Panel consists of Justices KEYES, HIGLEY, and YATES.
The Honorable Leslie Yates, retired Justice, Fourteenth Court of Appeals, sitting by assignment. See TEX. GOV'T CODE ANN. § 74.003(b) (Vernon 2005).
MEMORANDUM OPINION
A jury convicted appellant, Travious Demond Lastrapes, of the second degree felony offense of delivery of a controlled substance, cocaine, weighing between one and four grams. After appellant pleaded true to the allegations in an enhancement paragraph, the trial court assessed punishment at twelve years' confinement. In one issue, appellant contends that the trial court erred in refusing to allow defense counsel to ask the venire during voir dire whether a witness with a criminal history "has less rights" and "shouldn't be believed." We affirm.
TEX. HEALTH SAFETY CODE ANN. §§ 481.102(3)(D), 481.112(c) (Vernon 2010).
Background
On April 7, 2009, Houston Police Department ("HPD") Officer R. Lara, a member of the HPD Narcotics Division working undercover, received information that an individual named "Trae" was selling narcotics in Kingwood. Officer Lara called Trae and arranged to purchase $100 worth of cocaine at a local gas station. After he had arrived at the designated meeting place, Officer Lara received a phone call instructing him to approach a car parked behind the gas station. The driver of the car identified himself as "Trae" and told Officer Lara to get in the back seat of the car. Trae handed Officer Lara a cigarette box containing what appeared to be crack cocaine. Officer Lara thanked Trae, handed $100 to an unidentified man sitting in the passenger seat, and arranged for another transaction to occur at a later date. Once Trae left the gas station, Officer Lara field-tested the substance, which tested positive as cocaine. Officer Lara identified appellant in court as "Trae." After the transaction, HPD Sergeant L. Bronikowski, who had observed Officer Lara meeting with appellant, followed appellant's car, hoping to discover his source for the cocaine. Sergeant Bronikowski also identified appellant in court as the driver of the car. Appellant engaged in another drug transaction with Officer Lara at a later date, and Sergeant Bronikowski again followed appellant after this transaction. HPD officers stopped appellant after he committed a traffic violation and arrested him for delivery of a controlled substance. During voir dire, defense counsel posed the following question to the venire:[W]hat about if a person has been convicted before in the past of a crime? You know, some people believe that once a person has been convicted of a crime before in the past, that person can never be believed again. He won't be telling the truth. That person is a liar. Does anyone feel like that? If a person has a past, if he's been convicted before, you know, that person just for whatever reason cannot be trusted or won't be telling the truth?Defense counsel asked each row of the venire whether anyone agreed with that sentiment. As defense counsel asked each row, a veniremember asked whether defense counsel was referring to someone who had been convicted or merely been indicted in the past. Defense counsel clarified: In this question I'm talking about a conviction. Let's say — let's say the person has a past and he's been convicted before of a crime, not a drug crime, any crime. Would that — would that put in your mind that the person can't be trusted or believed? At this point, the trial court interrupted and informed the venire that if a witness testified and it was appropriate for the jury to learn about any prior convictions of that witness, then:
[T]hat's something that the jury — a jury could consider in determining the credibility of that witness. But it does not determine whether or not they're a credible witness or not. But it's something that a jury can and should consider. Defense counsel then asked: "Does anyone believe that [a person who has committed a crime] should have less rights than anyone else, no matter what the crime was in the past?" The trial court again interrupted and asked what defense counsel meant by "less rights." Defense counsel clarified: "It goes to the fact of mainly having less rights in the sense that they believe — kind of goes to my last question, that they shouldn't be believed or — "The trial court then interrupted a third time and stated:
Okay. Again, that's — that's a commitment question. The question — but the point is the State has to prove every case beyond a reasonable doubt. Doesn't matter who the person is. But you can always consider a person's — if appropriate, then you can consider [a prior conviction] for determining truthfulness or credibility. . . . The only time that character becomes an issue of the accused is if the accused should, let's say, take the stand and testify. And then just like anybody else that takes the stand, then their criminal history and so forth is something that a jury can consider.The trial court then explained basic principles behind the consideration of character evidence. In response to a question from a veniremember, the court stated that the jury might not learn about any prior convictions of the defendant and reiterated that the State must prove its case beyond a reasonable doubt and it "can't prove that based on somebody's character." The trial court repeatedly emphasized, over five pages in the voir dire record, that, generally, prior convictions are not admissible, and that the State could only present character evidence if the defendant had first placed his character at issue. After the trial court concluded this discussion, defense counsel moved on and asked the veniremembers whether they would automatically believe the testimony of a police officer. The jury found appellant guilty of the offense of delivery of a controlled substance. After appellant pleaded true to the allegations in an enhancement paragraph, the trial court assessed punishment at twelve years' confinement.
Refusal to Allow Commitment Question
In his sole issue, appellant contends that the trial court erroneously refused to allow defense counsel to ask the proper question of whether the veniremembers believed that a witness with a criminal history should have "less rights" and "shouldn't be believed." According to appellant, the trial court "would not permit defense counsel to pose his question because it was `a commitment question.'" The State contends that "the record shows that the judge did not actually disallow any questions by appellant's attorney" and that, even if the trial court did err, appellant cannot demonstrate harm because the trial court allowed defense counsel to ask the venire a substantively identical question before the question at issue here. We agree with the State. The 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). A trial court commits error if it prohibits defense counsel from asking "proper" voir dire questions. Rhoades v. State, 934 S.W.2d 113, 118-19 (Tex. Crim. App. 1996); Jones v. State, 264 S.W.3d 26, 27 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd) ("A trial court abuses its discretion if it denied defense counsel the right to ask prospective jurors a proper question because such a denial prevents the defendant from intelligently exercising his peremptory strikes."). To preserve error regarding the manner of voir dire, the record must reflect a proper question which the trial court has not allowed to be answered. Dhillon v. State, 138 S.W.3d 583, 589 (Tex. App.-Houston [14th Dist.] 2004, no pet.) (citing S.D.G. v. State, 936 S.W.2d 371, 380 (Tex. App.-Houston [14th Dist.] 1996, writ denied)). "In addition, to preserve error under these circumstances, a party must obtain a ruling on the question [disallowed by the trial court]." Id. at n. 6; see also Caldwell v. State, 818 S.W.2d 790, 794 (Tex. Crim. App. 1991) ("Appellant failed to preserve a reviewable error in two respects: first, he never presented the trial court with a specific question; second, he failed to obtain an adverse ruling as to that question."), overruled on other grounds, Castillo v. State, 913 S.W.2d 529 (Tex. Crim. App. 1995). In most instances in which an appellant contends that the trial court erroneously disallowed defense counsel's proper voir dire question, the State objected to the question and the trial court sustained the objection. See, e.g., Nunfio v. State, 808 S.W.2d 482, 484 (Tex. Crim. App. 1991), overruled on other grounds, Barajas, 93 S.W.3d 36; Jones, 264 S.W.3d at 27. Here, defense counsel was in the process of clarifying to the trial court what he meant by whether people with criminal histories should have "less rights" when the trial court interrupted, told defense counsel that his question was "a commitment question," and informed the venire that the State always had to prove its case beyond a reasonable doubt and that, when appropriate, the jury should consider a witness's criminal history in determining truthfulness and credibility. The trial court did not sustain an objection to defense counsel's question, it did not inform defense counsel that he was attempting to ask an improper commitment question, and it did not require defense counsel to move on to a new line of inquiry with the venire. Instead, the trial court continued discussing, and answered two questions from prospective jurors regarding, when a jury could consider character evidence and a witness's criminal history. At the conclusion of the trial court's discussion, defense counsel did not return to his original question regarding whether jurors would disbelieve a witness with a criminal history; rather, he began asking the veniremembers whether they would automatically believe the testimony of a police officer. We agree with the State that the voir dire record does not reflect that the trial court disallowed defense counsel's question or that the trial court made an adverse ruling on whether defense counsel could ask his question. Because defense counsel did not obtain an adverse ruling on his question, we conclude that appellant did not preserve his complaint that the trial court erroneously refused to allow a proper voir dire question for appellate review. See Caldwell, 818 S.W.2d at 794; Dhillon, 138 S.W.3d at 589; see also Word v. State, 206 S.W.3d 646, 651-52 (Tex. Crim. App. 2006) ("It is usually the appealing party's burden to present a record showing properly preserved reversible error."); Ortiz v. State, 144 S.W.3d 225, 230 (Tex. App.-Houston [14th Dist.] 2004, pet. ref'd) ("[The appellant] is required to develop the record to show the nature and source of error and, in some cases, its prejudice to him."). Moreover, even if the trial court erroneously refused to allow defense counsel to ask a proper question regarding whether the veniremembers believed that a witness with a criminal history had "less rights" and "shouldn't be believed," we would conclude that the error was harmless because the trial court allowed defense counsel to ask a substantively identical question. See Woods v. State, 152 S.W.3d 105, 110 (Tex. Crim. App. 2004) ("The trial court's denial of a proper [voir dire] question in this case did not have a substantial or injurious effect or influence in determining the jury's verdict because defense counsel was able to ask [the prospective juror] essentially the same question."); Rachal v. State, 917 S.W.2d 799, 815 (Tex. Crim. App. 1996) ("Without addressing the propriety of appellant's question, we hold that the court's prohibition was harmless beyond a reasonable doubt. According to the record, without objection from the State, the venireman answered appellant's question about what he understood the meaning of a life sentence to be as part of appellant's next question."). Here, before defense counsel asked the question at issue, the trial court allowed defense counsel to pose the following question to the venire:[W]hat about if a person has been convicted before in the past of a crime? You know, some people believe that once a person has been convicted of a crime before in the past, that person can never be believed again. He won't be telling the truth. That person is a liar. Does anybody feel like that? If a person has a past, if he's been convicted before, you know, that person just for whatever reason cannot be trusted or won't be telling the truth.Defense counsel asked the veniremembers "by row" whether they agreed that they would not believe a witness who had a criminal history. We conclude that this question was substantively identical to the question that appellant claims the trial court erroneously refused. Both questions sought to determine whether a veniremember would automatically disbelieve a witness's testimony upon learning that the witness had a criminal history. Because the trial court allowed defense counsel to ask essentially the same question as the desired question, we hold that appellant has not demonstrated that he was harmed by the trial court's alleged erroneous refusal of a proper question. See Woods, 152 S.W.3d at 110 (holding denial of question did not have "substantial or injurious effect or influence" on verdict); Rachal, 917 S.W.2d at 815 (holding trial court's denial harmless beyond a reasonable doubt); see also Franklin v. State, 138 S.W.3d 351, 354 (Tex. Crim. App. 2004) (holding that "right to question veniremembers in order to intelligently exercise peremptory challenges and challenges for cause" is "essential" to guarantee of assistance of counsel and trial before impartial jury). We overrule appellant's sole issue.