COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-427-CR
ANTONIO ZAVALA CARDENAS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
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OPINION
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Introduction
Appellant Antonio Zavala Cardenas appeals his convictions for aggravated
sexual assault and indecency with a child, arguing that the trial court erred by
denying his challenges for cause to various members of the jury panel following
voir dire. See Tex. Penal Code Ann. §§ 21.11(a), 22.021(a) (Vernon Supp.
2009); Tex. Code Crim. Proc. Ann. art. 35.16(a), (c) (Vernon 2006). We
reverse and remand.
Background Facts
In May 2006, a Tarrant County grand jury indicted Cardenas for three
counts of aggravated sexual assault and one count of indecency with a child.
The charges involved Cardenas’s sexual contact with a four-year-old
girl. Before his trial, Cardenas swore that he had not been previously convicted
of a felony and asked the trial court to submit his request for a probated
sentence to the jury.
Cardenas’s trial proceedings started with his pleas of not guilty, and then
the trial court instructed an almost 100-member jury panel about voir dire and
other issues. The court informed the panel that if it convicted Cardenas, it
could assess punishment at a minimum of five years’ confinement for the
aggravated sexual assault charges and two years’ confinement for the
indecency with a child charge and that it could probate his sentence if he
proved that he had not been previously convicted of a felony. It then told the
panel that although jurors do not have to “leave [their] common sense at the
courthouse steps,” they must be free from prejudice or bias.
After the parties presented evidence on Cardenas’s guilt and innocence
and his punishment, the jury convicted him of two counts of aggravated sexual
2
assault and one count of indecency with a child, 1 and it assessed twenty years’
confinement on each charge. Cardenas filed his notice of appeal.
The Trial Court’s Denial of Cardenas’s Challenges for Cause
In thirty connected issues that he has briefed together, Cardenas asserts
that the trial court erred by denying his challenges for cause to thirty members
of the jury panel because they indicated that they could not consider the full
range of punishment for his charges.
Standard of review
We review a trial court’s ruling on a challenge for cause with considerable
deference because the trial court is in the best position to evaluate the
veniremember’s demeanor and responses. Newbury v. State, 135 S.W.3d 22,
32 (Tex.Crim.App.), cert. denied, 543 U.S. 990 (2004); Tucker v. State, 183
S.W.3d 501, 511 (Tex. App.—Fort Worth 2005, no pet.). We reverse a trial
court’s ruling on a challenge for cause only upon a clear abuse of discretion.
Newbury, 135 S.W.3d at 32; Curry v. State, 910 S.W.2d 490, 493 (Tex. Crim.
App. 1995); Tucker, 183 S.W.3d at 511. In determining whether the trial court
abused its discretion, we review the total voir dire record in context. See
Mathis v. State, 67 S.W.3d 918, 924 (Tex. Crim. App. 2002); King v. State,
1
The trial court granted Cardenas’s motion for a directed verdict of not
guilty on one of the aggravated sexual assault counts.
3
29 S.W.3d 556, 568 (Tex. Crim. App. 2000); Emenhiser v. State, 196 S.W.3d
915, 927 (Tex. App.—Fort Worth 2006, pet. ref’d).
Applicable law
“A challenge for cause is an objection made to a particular juror, alleging
some fact which renders the juror incapable or unfit to serve on the jury.”
Tex. Code Crim. Proc. Ann. art. 35.16(a). A challenge for cause may be made
by the defendant when a juror “has a bias or prejudice against any of the law
applicable to the case upon which the [defendant] is entitled to rely, either as
a defense to some phase of the offense for which the defendant is being
prosecuted or as a mitigation thereof or of the punishment therefor.” Id. art.
35.16(c)(2); see Sadler v. State, 977 S.W.2d 140, 142 (Tex. Crim. App. 1998)
(stating that bias against the law exists when a juror’s beliefs “would prevent
or substantially impair the performance of his duties”); Garcia v. State, 887
S.W.2d 846, 857 (Tex. Crim. App. 1994), cert. denied, 514 U.S. 1005 (1995).
The burden is on the proponent of the challenge for cause to establish
that the challenge is proper. Feldman v. State, 71 S.W.3d 738, 747 (Tex.
Crim. App. 2002). This burden is not met until the proponent has
demonstrated that the panel member understood the requirements of the law
and was not able to overcome his prejudice well enough to follow them. Id.
In other words, “[b]efore a prospective juror can be excused for cause . . . the
4
law must be explained to him and he must be asked whether he can follow that
law regardless of his personal views.” Id. at 744; Jones v. State, 982 S.W.2d
386, 390 (Tex. Crim. App. 1998), cert. denied, 528 U.S. 985 (1999); Curtis
v. State, 205 S.W.3d 656, 659 (Tex. App.—Fort Worth 2006, pet. ref’d).
The defendant’s right to an unbiased jury is both statutory and constitutional
in nature. See State v. Morales, 253 S.W.3d 686, 694 (Tex. Crim. App.
2008).
A juror must be able to consider the full range of punishment for an
offense, and a defendant’s voir dire question about a juror’s ability to do so is
generally proper. Standefer v. State, 59 S.W.3d 177, 181 (Tex. Crim. App.
2001); Banda v. State, 890 S.W.2d 42, 55 (Tex. Crim. App. 1994), cert.
denied, 515 U.S. 1105 (1995); see Tex. Code Crim. Proc. Ann. art.
35.16(c)(2). If a juror cannot consider an offense’s full range of punishment,
the juror is challengeable for cause. Standefer, 59 S.W.3d at 181; see Banda,
890 S.W.2d at 55 (explaining that a “person who testifies unequivocally that
he could not consider the minimum sentence as a proper punishment for [an]
offense . . . is properly the subject of a challenge for cause”); Pierce v. State,
696 S.W.2d 899, 902–03 (Tex. Crim. App. 1985) (holding that the trial court
erroneously denied the defendant’s challenge for cause when a panel member
said that he could not consider granting probation in a murder case); Von Byrd
5
v. State, 569 S.W.2d 883, 891 (Tex. Crim. App. 1978), cert. denied, 441 U.S.
967 (1979).
Analysis
The State discussed range of punishment issues with the jury panel
during the voir dire process. For example, the State’s prosecutor extensively
explained to the jury their duty to consider the full range of punishment without
assuming any particular factual circumstances and regardless of their personal
views by stating,
It’s a first-degree felony, a minimum of five years all the way up to
99 years or life. Remember, you don’t know what the facts are
yet. You know what the elements are. . . . That’s why the
legislature gives you a big range of punishment. You don’t know
what it’s going to be yet. Okay? You don’t know. . . .
....
Now, you guys have not heard any facts yet. Okay? And in
the same manner that you have to keep an open mind to whatever
the evidence may be and wait to make your decision as to whether
or not someone is guilty, it’s the same thing for punishment. You
don’t know what the rest of the story is. You have to wait. . . .
To sit on a jury, this is what’s required: At this point without
having heard anything, you have to be able to keep an open mind.
You have to be able to consider the full range of punishment. . . .
Just say you know what, I don’t know; I’m going to wait. I’m
going to wait to hear what it actually is. . . . And that’s the word
we need from you now. And if you can’t give me that word, then
I need to know about it. We both need to know about it.
....
6
. . . I need to make sure that you can be fair. And not
having heard any evidence, just wait until you hear any evidence,
so that, you know, you can decide what’s appropriate. And all
we’re asking here is can you consider the full range of punishment.
It doesn’t even mean you have to give it.
....
. . . You don’t have to give it. You have to consider it. . . .
....
. . . [Y]ou are not supposed to come into this jury box with
any thoughts ahead of time as to whether or not the defendant is
guilty or what the facts are. We know what the law is at this point
and what he has been accused of. And you guys are going to have
to say, I am going to wait to hear the evidence. Okay? I have to
wait to hear the evidence.
. . . [A]t this point in time, since you haven’t heard anything,
you have to be able to consider the full range.
....
. . . I am just telling you what the law says. It says for you
to be on a jury, to sit here and to make a decision . . ., you have to
be able to consider the full range. . . .[ 2 ]
Then, during part of his own voir dire examination, Cardenas’s counsel
said to the jury,
2
In relation to the jury’s role in assessing punishment, the prosecutor
had also previously said, “The jury must base their verdict on the evidence
heard in the courtroom, okay? And not on your personal experience. . . .
People with strong feelings are not automatically disqualified. . . . However,
you can be disqualified if you have already made up your minds about this case
without hearing and considering the evidence.”
7
All right. Aggravated sexual assault of a child. Five to 99 years or
life, up to a $10,000 fine, possibility of probation, if you decide
deserving and sentence to under ten years.[ 3 ] And we all agree
that there’s different punishment areas for different offenses, right?
Speeding ticket going two miles an hour over the speed limit
shouldn’t be fined as much as somebody going 30 miles an hour;
is that a fair statement? I’m not saying that this is equivalent to a
speeding ticket. But there are different punishments. And there is
a big range of punishments. All right.
I want you to assume something. I want you to assume that you
are sitting on a jury, okay? I want you to assume that you have
found somebody guilty of sexual assault, aggravated sexual assault
of a child. They intentionally or knowingly caused the penetration
of the sexual organ of the complaining witness, of the victim, by
the means of the sexual organ or any other or with a finger or with
touching genital to genital. I want you to assume that there is no
reasonable doubt, that you believe beyond a reasonable doubt that
the person is guilty. Okay? I want you to assume that it’s a
unanimous decision amongst the 12 of you, that all of you believe
beyond a reasonable doubt that the person is guilty. Not
consensual; it was an intentional and knowing assault.[ 4 ]
3
This was the correct punishment range for aggravated sexual assault
under the facts of this case at the time of Cardenas’s alleged criminal act in
2005. See Tex. Penal Code Ann. §§ 12.32, 22.021(e) (Vernon Supp. 2009).
For offenses committed on or after September 1, 2007, the minimum term of
confinement for aggravated sexual assault of a child younger than six years old
is twenty-five years. Act of May 18, 2007, 80th Leg., R.S., ch. 593, § 1.18,
2007 Tex. Gen. Laws 1120, 1128 (current version at Tex. Penal Code Ann. §
22.021(f)). Also, for offenses committed on or after September 1, 2007, a jury
may not recommend probation in an aggravated sexual assault case when the
victim is younger than fourteen years old. Act of May 18, 2007, 80th Leg.,
R.S., ch. 593, § 1.06, 2007 Tex. Gen. Laws 1120, 1123 (current version at
Tex. Code Crim. Proc. Ann. art. 42.12 § (4)(d)(5) (Vernon Supp. 2009)).
4
Cardenas’s counsel tracked the language of the statute in his question
for aggravated sexual assault regarding the defendant’s intentional or knowing
state of mind. See Tex. Penal Code Ann. § 22.021(a)(1)(B).
8
Intentional and knowing basically means wanting to do it; he meant
to do it. This is the question: Could you honestly ever fairly
consider on an aggravated sexual assault of a child as little as five
years in prison and give probation as an appropriate punishment[?]
Fifty-two members of the jury panel answered the question negatively. Nobody
asked those jurors to clarify or reweigh their negative answers to the question.
After voir dire concluded, as the trial court asked whether the parties had
challenges for cause to each remaining potential juror, the following exchange
occurred:
THE COURT: [Panel member] No. 6?
[DEFENSE COUNSEL]: Range of punishment.
[STATE]: Judge, we would object to that. Counsel asked
the wrong question, is the bottom line. And frankly, to make it
easier, I assume he will challenge for cause numerous other jurors.
There’s some that we would agree to, but for the most part, he
asked the wrong question, and that’s the bottom line. His question
very specifically was, “Can you honestly ever fairly consider as
little as five years in prison and give probation as an appropriate
punishment,” and that’s not what the law provides. And frankly,
I think this court has been present in other jury selections where
Defense counsel asked the wrong question. And the real question
that is supported by case law is if the facts justify it and the law
allows it, can you consider it. And counsel very specifically asked
him to entertain a hypothetical and to imagine factual
circumstances where they could give that, and that’s inappropriate.
It’s the wrong question. And we would agree to [some challenges,
but] [e]veryone else challenged under that question, we would
object to.
9
Cardenas’s thirty issues relate to the thirty jury panel members whom he
similarly challenged under “range of punishment” and whom the trial court did
not release from the jury list by either granting that challenge or otherwise
excusing the jurors through the State’s agreement or on other challengeable
grounds. Those panel members’ negative responses to Cardenas’s question
show that they could not follow the law by considering the minimum
punishment and that they were therefore challengeable for cause. See
Standefer, 59 S.W.3d at 181; Banda, 890 S.W.2d at 55; see also Faulder v.
State, 745 S.W.2d 327, 339 (Tex. Crim. App. 1987) (explaining that it is
“axiomatic that a prospective juror who states that he cannot consider [the full
range of punishment] is subject to challenge for cause”) (citation omitted); Von
Byrd, 569 S.W.2d at 891 (stating that it is “well established that the
[defendant] has a right to challenge for cause any juror who could not give the
minimum punishment”).
However, in its first response to Cardenas’s issue, the State argues that
he did not preserve error. To preserve error on his challenges for cause,
Cardenas had to (1) assert a clear and specific challenge for cause, (2) use a
peremptory challenge on the complained-of veniremember, (3) exhaust all of his
peremptory challenges, (4) request and be denied additional peremptory
challenges, and (5) be forced to accept an objectionable juror on the jury.
10
Feldman, 71 S.W.3d at 744; Green v. State, 934 S.W.2d 92, 105 (Tex. Crim.
App. 1996), cert. denied, 520 U.S. 1200 (1997). Cardenas did all of these
things; the State has not argued otherwise.
Nonetheless, the State argues that Cardenas still did not preserve error
because he did not ensure that the jury panel understood the law’s
requirements and could not overcome their prejudice well enough to follow
them. But leading up to his question, as indicated above, Cardenas’s counsel
did explain the law on punishment to the panel. And, as the State argues,
although Cardenas’s counsel did not follow up with additional questions to the
jurors individually about overcoming their respective prejudices after they
unequivocally indicated that they could not consider giving a person convicted
of aggravated sexual assault of a child the minimum statutory punishment,
including probation, we hold that under the limited circumstances of this case,
such a follow-up question was not required. The jury had previously been
repeatedly informed by the trial court and the State that a jury must act without
prejudice and that the law commands that they consider the minimum
punishment regardless of their personal views, and in that context, the panel
11
members’ answers to the question at issue demonstrated that they could not
do so.5
Secondly, the State asserts that the trial court did not abuse its discretion
by denying Cardenas’s challenges because his counsel’s question sought an
improper commitment from the panel members. The State contends that the
question failed the first and third parts of the test for valid commitment
questions as set forth in Standefer.
The determination of whether a question is a proper commitment question
is a three-part test: (1) is the question a commitment question; (2) could a
possible answer to the question produce a valid challenge for cause because it
would show that a juror would not follow the law; and (3) does the question
only contain the facts required to make such a challenge. See Tijerina v. State,
202 S.W.3d 299, 302 (Tex. App.—Fort Worth 2006, pet. ref’d) (op. on reh’g).
A question is a commitment question—although not necessarily an improper
commitment question—when it commits a prospective juror to resolve, or
refrain from resolving, an issue in a certain way after learning a particular fact.
5
At oral argument, the State relied on the court of criminal appeals’s
Jones decision to propose that Cardenas’s counsel was required to follow up
with each of the panel members who answered his question negatively.
However, we cannot find any language in the Jones opinion that requires
further questioning under the circumstances at issue here. See Jones, 982
S.W.2d at 388–90.
12
See Standefer, 59 S.W.3d at 179–80; Lydia v. State, 117 S.W.3d 902, 905
(Tex. App.—Fort Worth 2003, pet. ref’d) (op. on remand). Counsel may ask
prospective jurors whether they can follow the law when it requires a certain
type of commitment from jurors and when the question states only the facts
required to establish a challenge for cause; however, when “the law does not
require the commitment, a commitment question is invariably improper.”
Standefer, 59 S.W.3d at 181; see Lydia, 117 S.W.3d at 905.
As we have explained, the law requires potential jurors to consider the full
range of punishment; thus, although Cardenas’s counsel’s question connected
hypothetical facts (the jury’s finding of guilt for aggravated sexual assault of a
child) to the resolution of a legal issue (consideration of the minimum
punishment), the question was not improper on the first part of the commitment
question test. See Standefer, 59 S.W.3d at 181 (stating that “questions
concerning a juror’s ability to consider the full range of punishment for a
particular offense meet the . . . definition of commitment questions but are
nevertheless proper”); Rivera v. State, 82 S.W.3d 64, 66 n.2 (Tex. App.—San
Antonio 2002, pet. ref’d).
The State has also argued on the final page of its brief and during oral
argument that the question fails the third part of the Standefer test—which
requires the question to include only the facts necessary for a challenge for
13
cause—because it allegedly “contained the approximate age of the victim, the
type of assault, and the manner and means of the actual assault.” 6 But the
State has not explained how the lead-in to Cardenas’s counsel’s question 7
about the offense’s alleged “manner and means” (presumably the part of the
question that hypothesized that the jury had found someone guilty of
penetrating the sexual organ of the complaining witness “by the means of the
sexual organ or any other or with a finger or with touching genital to genital”)
affected the veniremembers’ responsibility in this particular case to consider the
entire range of punishment for the offenses. The alleged “manner and means”
described by Cardenas’s counsel directly corresponds with the indictment’s
allegations. See Barajas v. State, 93 S.W.3d 36, 38 n.1 (Tex. Crim. App.
2002) (stating that under Standefer, “parties may not ask whether venire
members can consider probation under the particular facts of the case beyond
the offense as charged in the indictment”).
Also, the State’s indictment did not aver that Cardenas’s alleged contact
with the victim’s sexual organ with either his finger or with his own sexual
6
The question quoted above does not state the age of the victim
beyond the question’s language that the charge involved a child.
7
The question was asked by Cardenas’s counsel and answered by the
panel members without any objection by the State regarding an allegation that
it required an improper commitment or was improper on any other basis.
14
organ were different manners and means of committing one offense at all;
rather, the State alleged that Cardenas’s alleged contact with the victim in
these ways comprised independent offenses for which the State sought
separate convictions. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i),
(a)(1)(B)(iii) (stating that a person commits aggravated sexual assault of a child
if the person “causes the penetration of the anus or sexual organ of a child by
any means” or if the person “causes the sexual organ of a child to contact or
penetrate the mouth, anus, or sexual organ of another person, including the
actor”); Vick v. State, 991 S.W.2d 830, 833 (Tex. Crim. App. 1999) (holding
that the various methods of contact described by section 22.021(a)(1)(B)
comprise “distinct statutory offense[s]” for which multiple convictions may be
obtained); McGlothlin v. State, 260 S.W.3d 124, 126–29 (Tex. App.—Fort
Worth 2008, pet. ref’d). Thus, Cardenas’s counsel’s question can be read as
properly asking the jury whether they could consider the minimum punishment
upon conviction of two of the specific crimes (beyond generally referencing
aggravated sexual assault of a child)—not the specific manners and means of
those crimes—that were contained in the indictment. In other words, the
question did not give unnecessary, additional details about Cardenas’s charges;
the question simply described the core elements of the charges. Therefore, we
hold that under the facts of this case, the specification of the methods of
15
sexual contact in Cardenas’s counsel’s question did not negate the potency of
the question to establish that the veniremembers could not follow the law on
punishment and were therefore challengeable for cause. 8
For all of these reasons, we hold that the trial court abused its discretion
by denying Cardenas’s challenges for cause to jurors who unequivocally stated
that they could not consider the full range of punishment for Cardenas’s
charges. See Newbury, 135 S.W.3d at 32; Standefer, 59 S.W.3d at 181;
Banda, 890 S.W.2d at 55. Specifically, we sustain Cardenas’s second issue,
regarding the denial of his challenge for cause to juror number 28. Cardenas
was harmed because of the denial as to juror number 28 because he (1) used
a peremptory strike to remove juror number 28, (2) exhausted his peremptory
strikes, (3) requested and was denied additional peremptory strikes, and
(4) identified three specific objectionable veniremembers who sat on the jury
and on whom he would have exercised peremptory strikes. 9 See Johnson v.
State, 43 S.W.3d 1, 7 (Tex. Crim. App. 2001) (holding that harm for a denial
8
We note that the State’s prosecutor also discussed particular methods
of sexual contact during his questioning on the range of punishment for
Cardenas’s offenses.
9
Specifically, Cardenas asserted that he would have struck three panel
members who served on the jury because a mother of one of the jurors was a
child abuse victim, another juror is an elementary school teacher, and the third
juror is a nurse and has “experience in different things that makes her
undesirable.”
16
of a challenge to cause, which is based under the nonconstitutional error
standard of rule of appellate procedure 44.2(b), requires these four elements);
see also Busby v. State, 253 S.W.3d 661, 670 (Tex. Crim. App.), cert. denied,
129 S. Ct. 625 (2008). Because we sustain his second issue, we decline to
specifically address his other twenty-nine issues. See Tex. R. App. P. 47.1.
Conclusion
Having sustained Cardenas’s second issue, we reverse the trial court’s
judgment convicting Cardenas of counts one, two, and four of the State’s
indictment, and we remand this case to the trial court for a new trial to decide
his guilt and his punishment on those three counts. See Tex. Code Crim. Proc.
Ann. art. 44.29(a) (Vernon Supp. 2009); Johnson, 43 S.W.3d at 7; Carson v.
State, 6 S.W.3d 536, 539 (Tex. Crim. App. 1999).
TERRIE LIVINGSTON
JUSTICE
PANEL: CAYCE, C.J.; LIVINGSTON and WALKER, JJ.
CAYCE, C.J. dissents without opinion.
PUBLISH
DELIVERED: November 25, 2009
17