Opinion issued April 7, 2005
In The
Court of Appeals
For The
First District of Texas
NO. 01-04-00604-CR
__________
WILLIE LEE SMITH, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Cause No. 980864
MEMORANDUM OPINION
A jury found appellant, Willie Lee Smith, Jr., guilty of the felony offense of robbery, and the trial court, after finding true the allegations in two enhancement paragraphs that appellant had two prior felony convictions, assessed his punishment at confinement for 30 years. In four points of error, appellant contends that the trial court erred in denying his motions for mistrial, in allowing the State to pose improper “commitment” questions to the venire panel, and in admitting irrelevant evidence. We affirm.
Factual and Procedural Background
The complainant testified that, as he was walking home from a convenience store, appellant, who was across the street, said to him two times, “Give me your money.” The complainant, who was 10 years old, attempted to run away, but then dropped some of the change he was carrying. When the complainant bent down to retrieve his change, appellant ran towards him, caught him, and grabbed him tightly. Because he was afraid that appellant was going to “hurt” him, “steal” him, and “rape” him, the complainant swung at the appellant and pulled away from him. The complainant then ran to his home, entered the gate to his yard and called for his parents. Appellant followed the complainant inside the gate, but left the scene after the complainant’s parents came out of the house, yelled at appellant, and pushed appellant. The complainant’s mother called for emergency assistance.
Houston Police Officer A. Carroll testified that, when he arrived at the scene, a group of people, including the complainant’s mother, described appellant and informed Carroll of the direction in which appellant had left the scene. Carroll looked for and immediately found appellant, who matched the description given to him, a few blocks away. Appellant was sweating and out of breath. Carroll placed appellant in the back of his patrol car and drove appellant back to the scene. The complainant’s mother and the complainant identified appellant as the assailant. Carroll then met with the complainant, who was “very scared” and “traumatized.” The complainant told Carroll that appellant had approached him, told him to give him his money, and grabbed him.
Motions for Mistrial
In his first point of error, appellant contends that the trial court erred in denying his motions for mistrial following the State’s improper comments during voir dire. Appellant complains of the following comments:
[State]: The defendant also has the right, regardless of the evidence against him, to a trial. If he wants a trial, he gets a trial. If he wants to force the victim to take the stand against him—
[Defense Counsel]: Again, I’m going to object to that. Your Honor.
[Trial Court]: Sustained as to the form of the question.
[Defense Counsel]: I ask the jury to be instructed to disregard it.
[Trial Court]: Disregard that.
[Defense Counsel]: I move for a mistrial.
[Trial Court]: It is denied.
[State]: The defendant has the right to a trial. The defendant can force him to take the stand against him. That’s his right.
[Defense Counsel]: Again, I would object to that. Your Honor.
[Trial Court]: Sustained.
[Defense Counsel]: Constitution says—
[Trial Court]: I sustain your objection.
[Defense Counsel]: Again, I ask the jury to be instructed to disregard.
[Trial Court]: The jury will disregard the last remark.
[Defense Counsel]: Again, I move for a mistrial.
[Trial Court]: It’s denied.
We review the trial court’s denial of appellant’s motions for mistrial for an abuse of discretion. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999); Woodall v. State, 77 S.W.3d 388, 399 (Tex. App.—Fort Worth 2002, pet. ref’d). A trial court may declare a mistrial when an error occurs that is so prejudicial that the expenditure of further time and expense would be wasteful. Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000). Whether a trial court abused its discretion in denying a motion for mistrial depends on whether the court’s instruction cured any prejudicial effect. Dinkins v. State, 894 S.W.2d 330, 357 (Tex. Crim. App. 1995); Faulkner v. State, 940 S.W.2d 308, 312 (Tex. App.—Fort Worth 1997, pet. ref’d). Generally, an instruction to disregard cures the prejudicial effect. Dinkins, 894 S.W.2d at 357; Woodall, 77 S.W.3d at 399. However, a comment may be so egregious or inflammatory as to render the instruction ineffective in curing the prejudice. Dinkins, 894 S.W.2d at 357; Woodall, 77 S.W.3d at 399.
Appellant cites Villareal v. State, 860 S.W.2d 647, 649 (Tex. App.—Waco 1993, no pet.), in support of his contention that the prejudicial effect of the State’s comments was incurable and that the court’s instructions to disregard were ineffective to cure such prejudice. In Villareal, during the closing argument in the punishment phase of trial, the State made the following argument: “This man made a conscious decision to rape a ten-year-old child. But he didn’t do it just once. He forced her to have to come into this courtroom in front of a bunch of strangers. . . .” Id. at 649. The trial court sustained defense counsel’s objection and instructed the jury to disregard the argument but denied his motion for mistrial. Id. The court of appeals held that the trial court erred in denying the motion for mistrial and remanded the case for a new trial on punishment. Id. at 649-50.
The argument made in Villareal and the comments made by the State in this case are not comparable. First, Villareal involved comments made by a prosecutor at the conclusion of his jury argument during the punishment phase of the trial. Id. An improper comment made during voir dire generally has less impact than similar comments made during jury argument. See Jackson v. State, 726 S.W.2d 217, 221 (Tex. App.—Dallas 1987, pet. ref’d) (noting that improper statement made during final argument, which is last thing jury hears before it retires to deliberate, “has a greater impact on the jury than the same statement made during voir dire when much time still remains before deliberations”). Here, the prejudicial effect of the State’s comments, if any, was minimized because they were made during voir dire.
Second, the force of the State’s argument in Villareal was much stronger than the force of the comments made by the State in this case. In Villareal, the court found that the State’s argument—that by compelling the victim to take the stand, the victim was again being “raped” by the defendant—was “extreme and manifestly improper and thus so inflammatory that its prejudicial effect could not be reasonably removed from the minds of the jurors by the instruction given.” Id. at 649. In this case, the State was not asking the jury to punish appellant for exercising his right to a jury trial and his right to confront the witnesses, including the complainant, who were testifying against him. In fact, after the State made the comments, the State told the jury that appellant had the right to confront his witnesses, as guaranteed by the Constitution, and appellant did not object to these additional comments. Moreover, the trial court told the jury during voir dire that the appellant had a right to cross-examine and subpoena witnesses and a right to a jury trial. Thus, the effect and force of the arguments made in Villareal are more significant than the effect and force of the comments made by the State in this case.
We conclude that the State’s comments made during voir dire were not so extreme or inflammatory as to render the trial court’s instructions to disregard ineffective, and any possible prejudice was cured by the instructions to disregard. We hold that the trial court did not abuse its discretion in denying appellant’s motions for mistrial.
We overrule appellant’s first point of error.
Improper Commitment Questions
In his second and third points of error, appellant contends that the trial court erred in allowing the State, over his objections, to pose improper commitment questions to the venire panel. The trial court overruled appellant’s objections to the following three questions posed by the State:
(1) The law doesn’t require that I prove to you that somebody actually took something to commit theft. I can prove to you by showing you evidence that that is what they planned. And how do you prove that they planned to take something or that is what they wanted? How can I prove that, Juror No. 3?
(2) But let’s say they don’t run off with it and I still want to prove to you that what they had in their mind was that they wanted to commit theft. How could I do that?
(3) Hypothetically, if a child were involved in a case, would anybody here have a hard time listening to a child witness on a case?
Appellant contends that these questions constituted improper commitment questions. See Standefer v. State, 59 S.W.3d 177, 181 (Tex. Crim. App. 2001). Appellant argues that the first two questions asked the jury to “set the parameters for their decision making” and that the third question asked the jury how it would “respond to a child witness who was ten years old and the complainant.”
Questions during voir dire are proper if they seek to discover a juror’s views on an issue applicable to the case. Smith v. State, 703 S.W.2d 641, 643 (Tex. Crim. App. 1985). Voir dire examination permits the parties to assess the desirability of prospective jurors and to select a “competent, fair, impartial, and unprejudiced jury . . . .” Staley v. State, 887 S.W.2d 885, 896-97 (Tex. Crim. App. 1994). Because a trial court has broad discretion over the process of selecting a jury, an appellate court should not disturb a trial court’s ruling on the propriety of a particular question during voir dire absent an abuse of discretion. Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002).
However, an attorney may not “attempt to bind or commit a prospective juror to a verdict based on a hypothetical set of facts.” Lydia v. State, 109 S.W.3d 495, 497 (Tex. Crim. App. 2003) (citing Allridge v. State, 850 S.W.2d 471, 480 (Tex. Crim. App. 1991)). “Questions that commit prospective jurors to a position, using a hypothetical or otherwise, are improper and serve no other purposes other than to commit the jury to a specific set of facts before the presentation of any evidence at trial.” Lydia, 109 S.W.3d at 497.
The test for determining when a voir dire question calls for an improper commitment has two steps: “(1) Is the question a commitment question, and (2) Does the question include only those facts that lead to a valid challenge for cause?” Id. (emphasis added). If the answer to the first question is “yes” and the answer to the second question is “no,” then the question asked is an improper commitment question. Id. at 497-98. Commitment questions commit a prospective juror to resolve, or to refrain from resolving, an issue a certain way after learning a particular fact. Id. (quoting Standefer, 59 S.W.3d at 179). While these types of questions “tend to require a ‘yes’ or ‘no’ answer,” they may also be open-ended and ask a prospective juror to “set the hypothetical parameters for his or her own decision-making.” Id. Additionally, commitment questions may contain words such as “consider,” “would,” and “could.” Id.
Not all questions that require a commitment are improper. For example, when the law requires certain types of commitments from jurors, attorneys may ask the prospective jurors whether they can follow the law in that regard. However, a commitment question is improper when “(1) the law does not require a commitment or (2) when the question adds facts beyond those necessary to establish a challenge for cause.” Id.
With respect to the first two questions posed by the State, appellant argues that the State requested the prospective jurors to devise a set of facts and speculate regarding whether that set of facts would prove an intent to commit theft. In contrast, the State argues that the questions merely solicited the jurors’ thoughts on what types of evidence the jurors would expect to see to prove the issue of intent and did not ask the jurors to commit to a finding of intent if certain evidence was presented. With respect to the third question, appellant argues that it was improper to ask the jurors if they would have a hard time listening to the child witness. The State counters that this question, like the first two, did not commit a prospective juror to resolve, or to refrain from resolving, an issue in a certain away.
We conclude that the first two questions were commitment questions. See Lydia, 109 S.W.3d at 499; Standefer, 59 S.W.3d at 183. These questions asked the jurors to discuss the type of evidence that would be necessary for the State to prove intent to commit theft under certain circumstances, and thus the questions asked the jurors to define the parameters of their decision making. See Lydia, 109 S.W.3d at 499 (holding question “what kind of conviction would cause you to have a bias” asked the jurors to define crimes that would make a difference in their assessment of a witness’s credibility and thus asked jurors to define the parameters of their decision making). However, we conclude that the third question was not a commitment question because it did not seek to commit the jurors to resolve, or to refrain from resolving, an issue a certain way after learning a particular fact. More specifically, it did not ask the jurors to “resolve the credibility of a witness based on a particular fact about that witness.” Compare Lydia, 109 S.W.3d at 499 (finding question asking jurors “Do each of you feel as though you could evaluate a witness and his testimony and decide if he is being truthful without automatically dismissing his testimony because of some criminal history” was a commitment question). The third question merely asked the jurors if they could listen to a child witness.
Because the first two questions constitute commitment questions, we must now determine whether these questions included only those facts that would lead to a valid challenge for cause. Standefer, 59 S.W.3d at 182. A review of the record reveals that the first two questions were posed during a series of questions by the State asking the jurors if they could follow the law and find that a person intended to commit theft even if he did not ultimately take anything from the victim. These questions, which were open-ended, provided an opportunity for a prospective juror to answer that, in his opinion, the intent to commit theft could only be established by showing that a person actually took property from a victim or used force in an attempt to take such property. It is apparent that the State was seeking to determine if any of the prospective jurors’ parameters for decision-making did not comply with the law, that is, whether any of the prospective jurors could not base a guilty verdict on evidence establishing a robbery “by threats.” Thus, these questions gave rise to a valid challenge for cause. See Atkins v. State, 951 S.W.2d 787, 789-90 (Tex. Crim. App. 1997) (noting that State could have permissibly inquired as to whether prospective jurors could follow law that says person may be found guilty of possession even if possession involved only a residue amount). We further conclude that these questions do not add facts beyond those necessary for a challenge for cause.
Accordingly, we overrule appellant’s second and third points of error.
Irrelevant Testimony
In his fourth point of error, appellant contends that the trial court erred in admitting the testimony of the complainant’s mother at the guilt phase of trial concerning the effect that the incident had on the complainant and his family. Appellant argues that this testimony was irrelevant and was calculated to inflame the minds of the jurors against appellant.
During the State’s direct examination of the complainant’s mother, the mother testified, without objection, that the family had moved from their house after the incident. The State then asked the mother if the incident was the reason the family moved. The trial court overruled appellant’s relevance objection to this question, and the mother testified that the incident was the reason the family moved. The mother further testified that they moved because the complainant was “scared.”
Relevant evidence is evidence having “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tex. R. Evid. 401 (Vernon 2004). Evidence concerning the after-effects of a crime is relevant during the guilt phase of a trial when it is relevant to a contested issue, such as consent or whether the offense was even committed. See Brown v. State, 757 S.W.2d 739, 740 (Tex. Crim. App. 1988) (stating that if consent is contested issue in rape case, evidence of after-effects of rape would be admissible); Yatalese v. State, 991 S.W.2d 509, 511 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d) (holding testimony regarding change in victim’s behavior after sexual assault relevant because it tended to prove assault occurred, where defense was that no assault occurred).
Appellant cites Garrett v. State, 815 S.W.2d 333, 337 (Tex. App.—Houston [1st Dist.] 1991, pet. ref’d), in support of his argument that the mother’s testimony about why the family moved was irrelevant. In Garrett, this Court held that evidence of the “after effects of the crime” could not be admitted during the guilt phase of the trial. Id. at 338. However, the defendant in Garrett contested that the complainant had misidentified him, not that the offense had not been committed. Id. at 338. Here, because appellant is disputing the commission of the offense, Garrett is substantively distinguishable from this case.
Here, the mother’s testimony was relevant to show that the appellant placed the complainant in fear, which was essential to proving that appellant was guilty of the charged offense. Tex. Pen. Code Ann. § 29.02 (Vernon 2003). Appellant contested whether the offense was committed, and specifically, whether he took actions that allegedly placed the complainant in fear. Thus, we hold that the mother’s testimony that the family moved from their house because the complainant was “scared” was relevant.
Accordingly, we overrule appellant’s fourth point of error.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Nuchia, Jennings, and Alcala.
Do not publish. Tex. R. App. P. 47.2(b).