Maddux v. State

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

MALONEY, Judge.

A jury convicted appellant of murder and assessed punishment at thirty (30) years imprisonment. Tex.Penal Code Ann. § 19.02. In a partially published opinion, the First Court of Appeals affirmed with one justice dissenting. Maddux v. State, 825 S.W.2d 511 (Tex.App.—Houston [1st Dist.] 1992). We granted appellant’s petition for discretionary review to determine whether our holding in Nunfio v. State, 808 S.W.2d 482 (Tex.Crim.App.1991) is applicable to nontestifying witnesses such as deceased victims. 1 We hold that it is.

During the voir dire examination, the trial judge informed the venire members that the applicable range of punishment was a minimum of five (5) years probation to a maximum of life imprisonment and a $10,000 fine. Defense counsel unsuccessfully attempted to ask the venire if they could consider probation in a murder case where the deceased was a child:

[Defense Counsel]: Now then, we’re not talking about any particular case. It *591 would be improper to do that. But in a hypothetical case where there was a murder conviction and a child had died, how many of you would still be able to consider probation?

[Prosecutor]: I object as being an improper—

THE COURT: Sustained, committing the jury to specific facts.

[Defense Counsel]: In a hypothetical situation assuming that fact and that fact alone, everything else was the same, the only fact that’s different is that a child died, how many of you would still be able to consider as little as five years probation?

[Prosecutor]: I object as being an improper question, asking the jury to commit themselves to specific facts in a case.

THE COURT: Sustained.

[Defense Counsel]: I’d like for the record to reflect I would like to ask that question of each and every juror.

THE COURT: It’s — the ruling stands.

The deceased in this case was approximately two and one-half years old. The First Court of Appeals held that the trial court did not abuse its discretion in preventing defense counsel from asking the venire members questions regarding a victim’s status as a child. Appellant argues that the victim’s status as a child is a proper area of inquiry just as questions regarding the victim’s status as a nun were proper in Nunfio .

In Nunfio the trial court prevented defense counsel from inquiring whether the venire could be fair and impartial in a hypothetical aggravated sexual assault where the victim was a nun. The victim testified at trial that “she was a Roman Catholic and a ‘member of [the] Ursuline Order which is a congregation of religious women in the Catholic Church.’ ” Nunfio, 808 S.W.2d at 488 . This Court held that the question was proper citing Abron v. State, 528 S.W.2d 405 (Tex.Crim.App.1975) (trial court erred in refusing to allow defense counsel to inquire about potential racial bias towards a rape victim who was of a different race than the defendant) and Hernandez v. State, 508 S.W.2d 853 (Tex.Crim.App.1974) (trial court erred in refusing to allow defense counsel to inquire about potential bias in favor of a witness who was also a police officer).

Here, the Court of Appeals attempted to distinguish Nunfio , as well as Abron and Hernandez . The cotut reasoned that in each of those cases the defense counsel sought to elicit potential bias regarding a complainant who was also a witness:

If the present case had involved an aggravated sexual assault on a child, or some other offense in which the child complainant was a prospective witness, then defense counsel would have been entitled to question the venire members concerning bias for or against the child witness.

Maddux, 825 S.W.2d at 515 (emphasis in original). Justice O’Connor dissenting noted that:

[n]othing in Nunfio supports the majority’s holding that the nun’s role as a witness (rather than her role as a victim) was the issue. Under the majority’s analysis, a defendant may question the venire about its potential bias for or against a person who will be a witness, but not about the venire’s bias for or against a person who was the victim.

Id. at 517 (O’Connor, J., dissenting).

We agree with Justice O’Connor; nothing in Nunfio distinguishes between victims who testify and those who do not. While it may be true that the police officer’s status as a witness was significant in Hernandez , the complainant’s status as a victim was the controlling factor in both Abron and Nunfio . Indeed, the question in Nunfio was proper because' it “sought to determine potential bias or prejudice in favor of the victim by virtue of her vocation.” Nunfio, 808 S.W.2d at 484 (emphasis added). Similarly, the question sought to be asked in this case was proper because it sought to elicit potential bias in favor of the deceased’s status as a child. 2 The credibility of a complainant as a *592 witness is not at issue here; we are merely reaffirming our holding in Nunfio that defense counsel is entitled to discover a venire-member’s bias in favor of the complainant’s status, e.g., as a nun in Nunfio , or in this case, as a child.

The State argues that the question was an impermissible attempt by defense counsel to commit the venire to a particular sentence given particular facts. 3 Saunders v. State, 780 S.W.2d 471, 476 (Tex.App.—Corpus Christi 1989), rev’d on other grounds, 840 S.W.2d 390 (Tex.Crim.App.1992). We disagree.

In Saunders, the trial court had previously informed the venire of the victim’s age when defense counsel attempted to ask the venire whether they could give that particular defendant probation even though that particular victim was a five month old child. The Thirteenth Court of Appeals held that the question was an improper attempt to commit the venire to a specific verdict given specific facts. Here, the venire was not aware of the deceased’s age or even that the deceased was a child, defense counsel did not mention the facts of this case, and he did not specifically refer to appellant or to the deceased.

We emphasize, as does Judge Campbell in his concurring opinion, that we are not in any way abrogating the long standing rule prohibiting counsel from committing the venire-members to a certain verdict given particular facts. See, e.g., Allridge v. State, 762 S.W.2d 146, 162-64 (Tex.Crim.App.1988), cert. denied, 489 U.S. 1040 , 109 S.Ct. 1176 , 103 L.Ed.2d 238 (1989); White v. State, 629 S.W.2d 701, 706 (Tex.Crim.App.1981), cert. denied, 456 U.S. 938 , 102 S.Ct. 1995 , 72 L.Ed.2d 457 (1982); Williams v. State, 481 S.W.2d 119, 121 (Tex.Crim.App.1972); Saunders, 780 S.W.2d at 476 .

We hold that the trial court abused its discretion when it prevented defense counsel from asking his question. The denial of a proper question during voir dire examination is always reversible error; it is not subject to a harm analysis under Tex.R.App.P. 81(b)(2). Nunfio, 808 S.W.2d at 485 . Accordingly, we reverse the judgment of the Court of Appeals and remand this cause to the trial court for a new trial.

BAIRD, J., not participating.

. We also granted review to determine whether the court of appeals erred in its analysis of the admissibility of extraneous offenses. Because we will reverse and remand for a new trial on appellant’s first ground for review, we will not address the extraneous offenses issue.

. A veniremember’s complete inability to consider the full range of punishment (including probation in a murder case when the defendant has not been convicted of any prior felony) would render the veniremember unfit for jury service. Tex.Code Crim.Proc.Ann. art. 35.16(b)(3) and *592 (c)(2). We do not decide today whether the question sought to be asked here, if answered negatively, would have been sufficient grounds for a challenge for cause. That question is not before us. However, the trial court should have allowed defense counsel the opportunity to discover potential bias in the veniremembers in order that he might intelligently exercise his peremptory challenges.

. The State through its Prosecuting Attorney, has also filed a post-submission brief responding to questions raised during oral argument before this Court on January 14, 1993. Judge Campbell asked appellant’s counsel, "Can you take what would ordinarily be a question that solicits a commitment and turn it into something else by just making it a hypothetical question?” Appellant’s counsel responded affirmatively, and then stated that a question such as “would you assess five years probation in this case” would be an attempt to commit the venire to a specific verdict given specific facts; whereas, a question resembling “in a hypothetical case, could you assess probation” would be proper. Apparently, appellant’s counsel found a significant difference between phrasing the question in terms of "would you" and "could you." The latter being proper. We disagree.

The State waived argument, but in its post-submission brief it downplays such a distinction. Obviously, there are no magic words that amount to a commitment; for instance, questions phrased as either "could you consider," or as in this case, "would you consider" do not commit the venire. As Judge Clinton pointed out during argument, "to consider” is not a commitment because the jury is supposed to consider the applicable range of punishment.