Samaripas, David Jr.

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 N0 .

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS AT AUSTIN,TEXAS

DAVID SAMARIPAS, JR.,

Appellant

v .

THE STATE OF TEXAS

Appellee

FROM THE THBITEENTH COURT OF APPEALS

AT CORPUS CHR1STI-EDINBER&, TEXAS

CAUSE NO. 13-11-00442-CR

APPELLANT'S PETITION FOR DISCRETIONARY REVIEU

ORAL ARGUMENT REQUESTED

DAVID SAMARIPAS,JR., PRO SE

TDCJ-ID # 1555601

RAMSEY UNIT

1100 FM 6 55

ROSHARON, TX 77583

D
AUG 0 3 2015

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 IDENTIFICATION OF THE PARTIES

Pursuant to TEX.R.APP.P.38.1 ( a) a complete list of all
counsel and parties to the trial court's order is provided
below so that members of this Honorable Court may at once
determine whether tbey are disqualified to serve or should
recuse themselves from participating in the decision of this
case .

COUNSEL FOR THE STATE

DOUG HOWELL ASSISTANT DISTRICT ATTORNEY

LISA MCMINN STATE PROSECUTING ATTORNEY

APPELLANT - DEFENDANT

DAVID SAMARIPAS, JR.

COUNSEL FOR APPELLANT ON APPEAL

RICHARD E.WETZEL
1411 WEST AVENUE
SUITE 100
Austin, Tx. 7 8 701
 TABLE OF CONTENTS
PS

STATEMENT REGARDING ORAL ARGUMENT i i i

TABLE OF AUTHORTIES iv

STATEMENT OF THE CASE 1

STATEMENT OF PROCEDURAL HISTORY 1

QUESTION PRESENTED 2

ARGUMENT 2

u
CONCLUSION

CERTIFICATE OF SERVICE, 5

APPENDICES 5, 7

n
 STATEMENT REGARDING ORAL ARGUMENT

The Appellant believes and respectfully surest to this

court that the important issue raised in this petition is

worthy of oral argument. The Appellant further be 1ieves»that

presentation of oral argument in this case will assist the

Court in understanding the effects of the Thirteenth Court, of

Appeals' opinion. Therefore, the Appellant request oral

argument in this case.

iii
 TABLE OF AUTHORITIES

PG
Z££ii£_ ££.§.££
A];i:*iIIlI_X_STATE, 850 SW 2d 471 (Tex .Cr im .App .1991 ) 2

1ARAJAS_V_STATE_, 93 SW 3d 36 (Tex. Crim.App.2000 ) 2

£M2ALEJ>_Y_STATE, 994 sw 2d 170 (Tex .Crint. App .1995 ) 3

STANDEFER V STATE, 59 SW 3d 177 (Tex. Grim App 2001) 2

iv
 NO. .;

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS AT AUSTIN, TEXAS

DAVID SAMARIPAS, JR.,
Appel lant

THE STATE OF TEXAS
Appellee

FROM THE THRITEENTH COURT OF APPEALS

AT CORPUS CHRISTI-EDINBERG, TEXAS

CAUSE NO. 13-11-00442-CR

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

STATEMENT OF THE CASE

The Appellant was indicted and found guilty of engaging

in organized criminal activity and the jury determined that

he had used or exhibited a deadly weapon during it's

commission. Two enhancements were submitted to this jury

during the punishment phase and the jury found both

enhancement paragraphs true,and Appellant was sentenced as a

habitual offender to 53 years in TDCJ-ID.

STATEMENT_0F_PR0CEDURAL_HISTORY

Appellant appealed the decision, claiming that the

evidence was insufficient, that the trial court abused it's
discretion in limiting his voir dire examination, that the

trial court erred in instructing the jury on the law

of parties, and that his sentenced was improperly
enhanced. The court of appeals affirmed Appellant's
-.conviction and sentence. Appellant filed a petition

for discretionary review, asking the court to consider

whether the Court of Appeals erred in holding that he failed

to preserve the voir dire error and whether his prior State

jail felony conviction could be used for sentence

enhancement.

The Court reversed on Appellant's voir dire issue, holding

that Appellant preserved error for review, and remanded

the issue to the Thirteenth Court of Appeals for

consideration of the merits of that issue. See Appendix-A

This Court has extended the Appellant's timeto file

it's petition for discretionary review until July 31, 2015.

This petition is timely filed. See Appendix -B

QUESTION PRESENTED
DID THE COURT OF APPEALS ERR IN FAILING TO PERFORM
A PROPER HARM ANALYSIS ON THE QUESTION ASKED BY COUNSEL

ARGUMENT

"A trial court's discretion is abused only when a proper

question about a proper area of inquiry is prohibited. A

question is proper if it seeks to discover a juror's views

an issue applicable to the case." %±JL*1 as_v;S ta_t e, 9 3 SW

3d 36 (Tex. Crim. App. 2002)(en Banc). "Commitment questions

are those that commit a prospective juror to resolve, or

refrain from resolving, an issue a certain way after

learning a particular fact." Standef er_Vj. State, 59 SW 3d

17 7, 179 (Tex. Cr im .App .200 1)( quot ing A1 1rid£e_y^S tate , 850

SW2d (Tex. Crim. App. 1991)(en banc)

The inquiry for improper commitment questions has two
Tsteps:(l) is the question a commitment question; and (2)

does the question include facts- and only those facts-that

lead to a valid challenge for cause? If the answer to (1) is

"yes" and the answer to (2) is "no",then the question is an

improper commitment question, and the trial court should not

allow the question. Id.at 182-83.

Upon holding a trial court erred in disallowing a proper

question, the court must evaluate for harm. Erroneously

excluding a proper question during voir dire is subject to a

harmless error analysis. Gonzales_y^State, 994 SW2d 170

(Tex. Crim.App. 1999)

In the instant case at bar, the question was a proper

question rather than an improper question as the court of

appeals determined. It should have been subjected to the

correct harm analysis because the question merely asked for

the type of evidence the State needed to present in order to

convince them that somebody committed an offense beyond a

reasonable doubt, which, when phrased a different way

elicited a proper answer,namely: FACTUAL

The question under review was not case-specific and had

no hypothetical.set of facts or solicited the prospective

jurors to set hypothetical parameters for their decision

making. The prospective jurors were not predisposed to

believe, based on this question, that they had to consider

any set of facts, and to speculate regarding what decision

they would make in that situation.

Further, this question us relevant to the issue of

whether the prospective juror could fairly comprehend the
term reasonable doubt,based on the previous answer on

reasonable doubt as being fuzzy. In other words , NOT

CLEAR. This is an issue that goes to the heart of a guilt or

innocence verdict, in the instant case based solely upon the

facts proven at trial. Therefore regarding this issue, the

trial court restricted the appellant's questioning of. the

prospective juror about tier ability to fairly comprehend

reasonable doubt, causing harm because appellant did not

intelligently exercise his challenge for cause or peren.ptory

challenge. In addition, Appellant tried several times to

explore the prospective juror's understanding of the beyond

a reasonable doubt standard through other questions and

several times he was restricted as well.

CONCLUSION

WHEREFORE,PREMISES CONSIDERED, the Appellant pra>s this

Honorable Cou;.t grant discretionary revitw of the Thirteenth

Court of Appeals' decision in this case, reverse, the

decision of the Thirteenth Court of Appeals, and order a

proper harm analysis and/or any other relief this court

deems necessary.

Respectfully submitted.
7-;^7r
David ^ama/ripas, Jr.
Pro se, TDCJ #15 5 5601
Ramsey Unit
1100 FM 655
Rosharon.Tx.77583
 CERTIFICATE OF SERVICE

I David Samaripas,Jr., do certify that a true and correct
copy of the foregoing Petition for Discretionary Review was
mailed via pre-paid U.S. postage to the Assistant District
Attorney Doug Howell. Additiona1ly,a copy of the foregoing
PDR was mailed to the State Prosecuting Attorney,P.0. Box
12405,Austin, Tx. 78711,in accordance with the TRAP 68.11.

Executed on this date : ^sAk:l£..
Bipas,Jr.
APPENDIX - A
 NUMBER 13-11-00442-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

DAVID SAMARIPAS JR., Appellant,

THE STATE OF TEXAS, Appellee.

On appeal from the 272nd District Court
of Brazos County, Texas.

MEMORANDUM OPINION ON REMAND1
Before Justices Rodriguez, Benavides, and Perkes
Memorandum Opinion on Remand by Justice Perkes

This case is on remand from the Texas Court of Criminal Appeals. On original

submission, we affirmed appellant David Samaripas Jr.'s conviction for engaging in

1This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to a
docket equalization order issued by the Supreme Court ofTexas. See Tex. Gov't Code Ann. § 73.001
(West, Westlaw through 2013 3d C.S.).
organized criminal activity. Samaripas v. State, 446 S.W.3d 1, 3 (Tex. App.—Corpus
Christi 2013), rev'd, No. PD-135-13, 2014 WL 5247434, *5 (Tex. Crim. App. Oct. 15,
2014). On appeal, appellant asserted four separate issues: (1) the evidence is
insufficient; (2) the trial court abused its discretion by limiting appellant's voir dire
examination of a prospective juror2; (3) the trial court erred by instructing the jury on the
law of parties; and (4) appellant's sentence was improperly enhanced. After we affirmed
the trial court's judgment, appellant sought discretionary review.

The Court of Criminal Appeals limited its consideration to appellant's voir dire and

enhancement issues. The Court agreed with our disposition of appellant's enhancement

issue, holding that appellant's sentence was properly enhanced. The Court, however,
reversed on appellant's voir dire issue, holding that appellant preserved error for review,
and remanded the issue to this Court for consideration of the merits of that issue.

Samaripas, 2014 WL 5247434, at *5.

I. Jury Voir Dire3

By this remaining issue, appellant argues that "the trial court abused its discretion
by improperly limiting [appellant's] voir dire examination of a prospective juror." Appellant
contends that the trial courtdisallowed a properquestion, and by refusing to allow counsel
to ask the question, his counsel was denied the opportunity to formulate a challenge for
cause and to intelligently use peremptory challenges.

2With respect to appellant's first issue, we opined that appellant failed to preserve his appellate
complaint for review on appeal.

3Afull recitation ofthe facts is available in ourearlieropinion. See Samaripas v. State, 446 S.W.3d
1, 3 (Tex. App.—Corpus Christi 2013), rev'd, No. PD-135-13, 2014 WL 5247434, *5 (Tex. Crim. App. Oct.
15 2014) On remand we are only providing the facts necessary for the disposition of the remanded issue.
2
 During voir dire, appellant's counsel advanced the following question: "What type
of evidence would you expect to hear? What type of evidence do you expect the State
ofTexas to bring you, Ms. O'Neal, in an effort to prove to you beyond a reasonable doubt
that someone committed an offense?" The State objected on the ground that the question

was an improper commitment question, and the trial court sustained the objection.

Defense counsel continued with voir dire as follows:

DEFENSE: [Directed to venireperson] In that class three years
ago, you probably learned there's no definition
provided by the court to "beyond a reasonable doubt";
is that right?

VENIREPERSON: Right. We had a long discussion about it.

DEFENSE: And did that make sense to you?

VENIREPERSON: It can be fuzzy.

DEFENSE: Itcan be fuzzy. In order to convince somebody beyond
a reasonable doubt—I'll come back to you,
[venireperson]. What type of evidence would you
expect the State of Texas to bring to you in order to
convince you that somebody committed an offense
beyond a reasonable doubt?

The State objected, and the trial court called the parties to the bench.
COURT: I think he is entitled to say what is your understanding
of reasonable doubt, as long as he doesn't give them a
definition they have to adhere to.

STATE: But if he's saying what [evidence] do you need for you
to get to guilty?

The trial court sustained the State's objection. Appellant's counsel rephrased.
DEFENSE: What type of evidence would you expect to hear?
What type of evidence do you expect the State of
Texas to bring you, [venireperson], in an effort to prove
 to you beyond a reasonable doubt that someone
committed an offense?

Again, the State objected, and the trial court called the parties to the bench.

STATE: Same question: "What do you expect?"

COURT: You're going to bind them to a certain level of evidence.

DEFENSE: Just asking them what do they expect the State of
Texas to bring them evidence wise.

COURT: I don't have a problem with that question. Ask it that
way. Sustained.

STATE: Butto prove somebody guilty at that pointintime, that's
why.

COURT: I can't let them get committed to a certain proof in order
to find somebody.

DEFENSE: I'm understanding that.

• COURT: I sustain the objection.

[End of bench conference.]

DEFENSE: In a criminal case, [venireperson], what type of
evidence would you expect to hear period?

VENIREPERSON: Factual.

DEFENSE: Factual evidence. What type of factual evidence,
[venireperson]?

VENIREPERSON: Good. Well, maybe some eyewitnesses.

DEFENSE: Eyewitnesses. Okay, what else? Now, we're talking
about engaging in organized criminal activity deadly
conduct charge. What are you expecting?

VENIREPERSON: Physical evidence.

DEFENSE: Physical evidence. Number 23, what type ofevidence
would you expect?
 VENIREPERSON: Gun.

DEFENSE: A gun. Okay.

VENIREPERSON: If that was the case.

DEFENSE: What else? What other type of evidence could we
have, factual physical evidence? A gun. What else
might you expect?

VENIREPERSON: Eyewitness.

VENIREPERSON: Expert testimony.

DEFENSE: Expert testimony. On what?

STATE: Judge, I'm sorry. We're going back to the same thing.
Essentially saying here's what we need to prove to get
to beyond a reasonable doubt.

DEFENSE: That's not my question, Judge.

COURT: Come up here again.

[Bench conference]

STATE: I keep objecting because he's trying the same exact
[sic].' He's saying what kind of evidence, factual
evidence—

COURT: Make clear to them in your question that your question
is predicated that they're many different kinds of
evidence some of it which you can hear, some of which
you cannot hear. In other words, what you're doing
now, again, is binding them to hear certain evidence
before they can say guilty.

DEFENSE: I respectfully disagree, your Honor, 'm just asking
them their expectations for trial.

COURT: Well, phrase it clearly that these may or may not be
necessary to find reasonable doubt, please.

DEFENSE: Yes, sir.
 COURT: Then you can ask it.

[End of bench conference.]

DEFENSE: Understanding that these items of evidence that we're
talking about here may or may not create reasonable
doubt, may or may not convince you beyond a
reasonable doubt—okay, we talked about physical
evidence; we talked about guns; we talked about—we
were at expert testimony. Who said that?

II. Standard of Review and Applicable Law

A trial court has broad discretion over the voir dire process, including setting

reasonable limits and determining the propriety ofa particular question. Barajas v. State,
93 S.W.3d 36, 38 (Tex. Crim. App. 2002) (en banc). "A trial court's discretion is abused
only when a proper question about a proper area of inquiry is prohibited. Aquestion is
proper if it seeks to discover a juror's views on an issue applicable to the case." Id.
(citations omitted).

Commitment questions that "bind or commit a prospective juror to a verdict based
on a hypothetical set of facts" exceed the proper area of inquiry, and a trial court does not
abuse its discretion in disallowing the questions. See Standeferv. State, 59 S.W.3d 177,
179 (Tex. Crim. App. 2001) (quoting Allridge v. State, 850 S.W.2d 471, 480 (Tex. Crim.
App. 1991) (en banc)). "Commitment questions are those that commit a prospective juror
to resolve, or refrain from resolving, an issue a certain way after learning a particular fact."
Id. "Although commitment questions are generally phrased to elicit a 'yes' or 'no' answer,
an open-ended question can be a commitment question if the question asks the
prospective juror to set the hypothetical parameters for his decision-making." Id. at 180
(citing Allridge, 850 S.W.2d at 480).
 But, not all commitment questions are improper. "[F]or a commitment question to
be proper, one of the possible answers to that question must give rise to a valid challenge
for cause."4 Id. at 182. For instance, "[w]hen the law requires a certain type of
commitment from jurors, the attorneys may ask the prospective jurors whether they can
follow the law in that regard." Id. at 181. "Even if a question meets this challenge for
cause requirement, however, the question may nevertheless be improper if [the question]
includes facts in addition to those necessary to establish a challenge for cause."

Standefer, 59 S.W.3d at 182 (emphasis in original).

The inquiry for improper commitment questions has two steps: (1) is the question
a commitment question; and (2) does the question include facts—and only those facts—
that lead to a valid challenge for cause? If the answer to (1) is "yes" and the answer to
(2) is "no," then the question is an improper commitment question, and the trial court
should not allow the question. Id. at 182-83.

Upon holding a trial court erred in disallowing a proper question, we must evaluate
for harm. "There may be instances when a judge's limitation on voir dire is so substantial
as to warrant labeling the error as constitutional error subject to a Rule 44.2(a) [of the
Texas Rules of Appellate Procedure] harm analysis." Easley v. State, 424 S.W.3d 535,
541 (Tex. Crim. App. 2014). But when an attorney is not "foreclosed from explaining the
concept of beyond a reasonable doubt and exploring the venire members' understanding
and beliefs of reasonable doubt by other methods" or questions, the error is not

4Texas Code ofCriminal Procedure article 35.16 lists the challenges for cause. See Tex. Code
Crim Proc Ann. art. 35.16(a) (West, Westlaw through 2013 3d C.S.) (providing that "[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").
7
constitutional, and we review for harm under Texas Rule of Appellate Procedure 44.2(b).
Easley, 424 S.W.3d at 541. Under that standard, we disregard any "error, defect,
irregularity, orvariance that does not affect substantial rights ...." Tex. R. App. P. 44.2(b);
Easley, 424 S.W.3d at 541-42. "A substantial right is affected when the error has a
substantial and injurious effect or influence in determining the jury's verdict." Rich v.
State, 160 S.W.3d 575, 577 (Tex. Crim. App. 2005) (quotation omitted). In assessing

harm, we review:

everything in the record, including any testimony or physical evidence
admitted for the jury's consideration, the nature of the evidence supporting
the verdict, the character of the alleged error and how it mightbe considered
in connection with other evidence in the case, the jury instructions, the
State's theory and any defensive theories, closing arguments, voir dire, and
whether the State emphasized the error.

Id. at 577-78; see Easley, 424 S.W.3d at 542.

III. Discussion

A. Exclusion of Voir Dire Question

Appellant asserts the trial court abused its discretion by limiting appellant's voir
dire examination of a prospective juror. Defense counsel asked: "What type ofevidence
would you expect to hear? What type of evidence do you expect the State ofTexas to
bring you, Ms. O'Neal, in an effort to prove to you beyond a reasonable doubt that
someone committed an offense?"

In context, defense counsel's question was a commitment question because it
solicited the prospective jurors to set hypothetical parameters for their decision-making.
See Standefer, 59 S.W.3d at 180. In other words, the question committed a prospective
juror to a verdict based on a hypothetical set of facts. Unlike typical commitment

8
questions, which are generally closed-ended questions, the type of open-ended
commitment question in this case begins with the answer—yes or no (i.e., conviction or
acquittal)—and asks the prospective jurors to setthe parameters to reaching that answer.
See id. Most specifically, defense counsel was addressing the State's burden of proof to
convict, and the question invited the prospective jurors to detail hypothetical prerequisites
to reaching that result, despite the fact that the State may not, and need not, present such
evidentiary parameters to satisfy its burden. See id. For example, a conviction may be
based on the testimony of a single eyewitness, in which case the State need not present
DNA evidence, a weapon, or expert testimony. See, e.g., Aguilar v. State, 468 S.W.2d
75, 77 (Tex. Crim. App. 1971). Recognizing that, the trial court requested defense
counsel to rephrase the question to avoid binding the prospective jurors to a type of
evidence as a prerequisite for conviction.

Having determined that defense counsel's question was a commitment question,
we now turn to whether the question included facts that would lead to a valid challenge
for cause. See Tex. Code Crim. Proc. Ann. art. 35.16 (West, Westlaw through 2013 3d
C.S.). The principle of proof beyond a reasonable doubt is crucial, and it is a proper area
of inquiry. But defense counsel's commitment question explored more than whether the
prospective jurors understood the burden or whether they could follow the law. As a
parameters-setting commitment question, it was not designed to uncover a valid
challenge for cause. See Standefer, 59 S.W.3d at 182 (holding that commitment question
is improper unless one of the possible answers gives rise to avalid challenge for cause).
Because the commitment question did not target a challenge for cause, defense counsel's
voir dire question was improper. See Standefer, 59 S.W.3d at 182. We conclude that
9
the trial court did not abuse its discretion insustaining the State's objection and requesting

defense counsel to rephrase the question. See id.

B. Harmless Error

Even assuming the question was not a commitment question or could give rise to
a challenge for cause, any error in restricting the question was harmless. Although the
trial court required defense counsel to rephrase the question, appellant was not
foreclosed from explaining the State's burden or exploring the prospective jurors'
understanding of and beliefs relating to it through other questions. Accordingly, we review
for non-constitutional error, see Easley, 424 S.W.3d at 541^2, and we disregard any
error in excluding the question unless it had a substantial and injurious effect or influence
on the jury's verdict. See Tex. R. App. P. 44.2(b); Rich, 160 S.W.3d at 577 (defining
"substantial rights").

The evidence showing appellant perpetrated the drive-by shooting with the intent
to establish, maintain, or participate in a criminal street gang was substantial. See, e.g.,
Hart v. State, 89 S.W.3d 61, 63-64 (Tex. Crim. App. 2002) (en banc) (defining the offense
of engaging in organized criminal activity). Officers testified that appellant belonged to a
gang. One detective read a statement from appellant in which he referred to the gang as
"us" and that gang's rival as "them." Earlier on the night of the shooting, a member of
appellant's gang shot four members of the rival gang. Later that night, a black car was
involved in shooting another member of the rival gang. Amember of that rival gang had
shot someone in appellant's gang a few days earlier, and the rival member lived at the
house where the drive-by shooting occurred. About one month earlier, the rival member
shot appellant. As a result of the shooting, appellant needed a colostomy bag. Police
10
found the gun used to shoot at the rival member's residence in appellant's colostomy bag,
which had been thrown from the front passenger seat of the vehicle, which is where

appellant sat. Awitness testified that a black carwas involved in the drive-by shooting.
Overall, the testimony and physical evidence against appellant was strong.
Although prevented from asking the question in the manner defense counsel
preferred, the trial court did not prevent appellant's defense counsel from exploring the
prospective jurors' understanding of the beyond-a-reasonable-doubt standard through
other questions. The jury charge explained the State's burden, and there is no evidence
any juror misunderstood the State's burden. The State did not emphasize the foreclosed
hypotheticals. In sum, upon considering the entire record, we conclude any error in
precluding defense counsel's question was harmless. See Rich, 160 S.W.3d at 577; see
also Tex. R. App. P. 44.2(b); Easley, 424 S.W.3d at 542.

We overrule appellant's sole issue on remand.

IV. Conclusion

We affirm the trial court's judgment.

GREGORY T. PERKES
Justice

Do Not Publish
Tex. R. App. P. 47.2 (b)

Delivered and filed the
30th day of April, 2015.

11
APPENDIX - B
 OFFICIAL NOTICE FROM COURT OFCRIMINAL APPEALS OFTEXAS
OFFltffce^t!JSifW^LST^
STATE OF TEXAS 111$
PENALTY FOR
PRIVATE USE Sg
. Q- U.
^So2i«"" $000.265
Sfl^Jili 0001401623MAY 28 2015
5/26/2015 QOA Case No- 13-11-00442-CR
SAMARIPAS, DAVID JR. Tr. Ct. No. 07-06200-CRF-272 PD-0626-15
On this day, this Court has granted the Appellant's Pro Se motion for an extension
of time in which to file the Petition-for Discretionary Review. The time to file the
petition has been extended to Friday; July 31, 2015. NO FURTHER EXTENSIONS
WILL BE ENTERTAINED. NOTE: Petition For Discretionary Review must be filed
with The Court of Criminal Appeals. /\
-")VAJ;i^\~\^)iz> Abe| Acosta>C|erk
DAVID SAMARIPAS JR
TDC# 1555601
RAMSEY UNIT
1100 FM 655 RD.
ROSHARON, TX 77583
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