Opinion
Nos. 14-10-00480-CR, 14-10-00481-CR
Opinion filed April 19, 2011. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 230th District Court Harris County, Texas, Trial Court Cause Nos. 1230335 1230336.
Panel consists of Justices BROWN, BOYCE, and JAMISON.
MEMORANDUM OPINION
A jury convicted appellant of aggravated robbery and aggravated assault on a police officer and sentenced him to confinement for thirty years in the Institutional Division of the Texas Department of Criminal Justice in each cause, to run concurrently. Appellant filed a timely notice of appeal in both cases. We affirm. In his sole issue, appellant claims the trial court abused its discretion when it refused to allow questioning of the venire on his mental deficiencies and whether he was capable of possessing the requisite mental state. Appellant asserts he was thereby deprived of his right to effectively exercise his peremptory challenges. The record reflects the following occurred during voir dire:
[Defense counsel]: Does anybody on row number one have any family members or loved ones that have either like a mental handicap or a learning disability?
VENIREPERSON: I have a nephew that has Down Syndrome.
[Defense counsel]: Down Syndrome.
VENIREPERSON: I have a retarded cousin and a brother-in-law who is retarded.
[Defense counsel]: Yes, ma'am — yes, sir.
VENIREPERSON: ADD.
[Defense counsel]: ADD. Okay. So, ADD is a learning disability, right.
VENIREPERSON: Right.
[Defense counsel]: Is there medication for that.
VENIREPERSON: Yes, sir, there is.
VENIREPERSON: It's not always necessary. It depends on the diagnosis.
[Defense counsel]: Sometimes.
VENIREPERSON: Depends.
[Defense counsel]: And you're a schoolteacher, right.
VENIREPERSON: Yes.
[Defense counsel]: You have seen kids with ADD?
VENIREPERSON: Yes, I have. A lot of special ed.
[Defense counsel]: There's special ed children, children that have been to — if somebody has a learning disability or has maybe some type of mental retardation, should they be given different consideration than a normal person?
VENIREPERSON: Well, yeah, you know, their social behavior. It's different. It's all different levels.
[Defense counsel]: Anybody on the first row that thinks they should be given some type of maybe consideration over a normal person?
VENIREPERSON: For ADD —
[The State]: Objection, Judge, to the that question —
VENIREPERSON: Talking about ADD —
[Defense counsel]: Are you saying mental —
THE COURT: Approach the bench, please.
(At the Bench, off the record)
(Open court, defendant and jury panel present)
[Defense counsel]: There are two parts to any crime. There's the guilty mind to do the crime and then the guilty act to commit the crime. And what if somebody has a minor retardation, they have a guilty mind to commit the act, still should they —
[The State]: Your Honor, objection. There's been no motion as to mental illness.
THE COURT: Sustained as to the form of the question.
[Defense counsel]: Does anyone here think that a person that has mental retardation or a learning disability may not have the guilty mind to commit the guilty act in the crime?
[The State]: Objection —
THE COURT: Sustained.
Counsel proceeded to end his voir dire.In his brief, appellant complains of the trial court's rulings on the last two questions set forth above. Appellant asserts the only issue at trial focused on whether he possessed the requisite intent to commit the offense and whether the jury could consider his mental disabilities was of paramount importance for the guilt/innocence phase of trial. Appellant argues the questions properly sought to discover the jurors' views on that issue. The propriety of a particular question is left to the trial court's discretion. Allridge v. State, 762 S.W.2d 146, 167 (Tex. Crim. App. 1988). We will not disturb the trial court's ruling on a particular question absent an abuse of discretion. Id. A trial court abuses its discretion when its denial of the right to ask a proper question prevents determination of whether grounds exist to challenge for cause or denies intelligent use of peremptory challenges. Mason v. State, 116 S.W.3d 248, 253 (Tex. App.-Houston [14th Dist.] 2003, pet. ref'd). Subject to the trial court's reasonable time limits, questions that are not clearly improper on some other basis may be asked to intelligently exercise peremptory challenges. See Ratliff v. State, 690 S.W.2d 597, 600 (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. See Wingo v. State, 189 S.W.3d 270, 271 (Tex. Crim. App. 2006); Woods v. State, 152 S.W.3d 105, 108 (Tex. Crim. App. 2004); and Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002). Cf. Davis v. State, No. PD-1400-10, 2011 WL 1135373, at * 2 (Tex. Crim. App. 2011) (question on what factors the venire believed to be important in assessing the sentence in a case of aggravated robbery with a deadly weapon was not an improper commitment question). "[Q]uestions that are not intended to discover bias against the law or prejudice for or against the defendant, but rather seek only to determine how jurors would respond to the anticipated evidence and commit them to a specific verdict based on that evidence, are not proper." Sanchez v. State, 165 S.W.3d 707, 712 (Tex. Crim. App. 2005). Such questions require a juror to promise that he will base his verdict on some specific fact before he has heard any evidence. Id. Unless the law requires such a commitment, this prejudgment of the value and importance of certain evidence is not permissible. Id. "[W]hen the law does not require the commitment, such that a juror would not be disqualified for cause by being influenced by a particular fact," the commitment question is improper. Id. In the case at bar, jurors were asked to answer whether they would resolve an issue in the case (requisite intent) based upon a fact in the case (appellant's alleged mental deficiencies). The law does not require a commitment the juror will find a defendant with mental deficiencies did not possess intent to commit the offense. As the Texas Court of Criminal Appeals noted in Wingo, questions seeking to commit jurors to convict on the evidence of a lone witness, to convict on circumstantial evidence, or to recommend probation even though the victim is a nun, were improper because no law requires a juror to do those things. Wingo, 189 S.W.3d at 271. Here, the questions sought to determine how jurors would respond to evidence appellant was mentally deficient and commit them to a specific verdict based on that verdict. Because the law requires no such commitment, the questions were improper. See Sanchez, 165 S.W.3d at 712. See also Standefer v. State, 59 S.W.3d 177, 181 (Tex. Crim. App. 2001); Wingo, 189 S.W.3d at 271. We therefore find the trial court did not abuse its discretion in sustaining the State's objections. Appellant's issue is overruled and the judgment of the trial court is affirmed.
Because this is the term repeatedly used in appellant's brief, we use it in this opinion.