PD-1326-15
PD-1326-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 10/7/2015 10:45:44 AM
Accepted 10/8/2015 2:08:36 PM
ABEL ACOSTA
PD No. CLERK
IN THE COURT OF CRIMINAL APPEALS
AT AUSTIN, TEXAS
HOWARD LARSON WAMPLER, JR., §
Appellant §
§ CAUSE NO. 11-13-00374-CR
V. §
§ TRIAL COURT NO. F 33837
THE STATE OF TEXAS, §
Appellee §
PETITION FOR DISCRETIONARY REVEW
FROM THE ELEVENTH COURT OF APPEALS
AT EASTLAND, TEXAS
CHIEF JUSTICE JIM WRIGHT, PRESIDING
PETITION OF PETITIONER (APPELLANT)
COPELAND LAW FIRM
PO Box 399
Cedar Park, Texas 78613
Tel. 512-897-8196
Fax. 512-215-8144
TIM COPELAND
State Bar No. 04801500
Attorney for Appellant
October 8, 2015
TABLE OF CONTENTS
Page
Table of Contents i-iii
Index of Authorities iv
I. Identity of Trial Court and Parties 1
II. Statement Regarding Oral Argument 2
III. Statement of the Case 3
IV. Statement of the Procedural History of the Case 4
V. Ground for Review 4
The Court of Appeals erred when it held that a question asked of veniremen
whether they favored punishment or rehabilitation in ―these kinds of cases‖ did not
affect appellant’s fundament rights to a presumption of innocence and a fair trial.
See and cf. Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000); also see R.R. 3,
pp. 53-61).
VI. Summary of the Argument 4
VII. Background and Statement of Pertinent Evidence 5
VIII. Court of Appeals’ Decision 6
IX. Argument 7
A. The offending question on whether potential
jurors favored punishment or rehabilitation ―in
these kinds of cases‖ constituted an improper
commitment question.
i
TABLE OF CONTENTS, continued
Page
(1) Only one result was possible on
conviction – imprisonment.
(2) Rehabilitation was not an option
upon conviction.
B. The question was fundamentally
defective because it compromised appellant’s
presumption of innocence.
(1) Since the ―option‖ of
rehabilitation was non-existent, the question
was designed to ensure a guilty verdict so the
jury could then impose punishment ―in these
kinds of cases.‖
(2) The taint associated with the
error affected the entire panel.
X. Prayer 9
XI. Certificate of Service and of Compliance with 11
Compliance with Rule 9
ii
INDEX OF AUTHORITIES
Page
Texas Courts of Criminal Appeals cases
Blue v. State 4,8
(41 S.W.3d 129 [Tex. Crim. App. 2000])
Steadman v. State 9
360 S.W.3d 499 (Tex. Crim. App. 2012)
Texas Courts of Appeal cases
Mata v. State 9
952 S.W.2d 30, 33 (Tex. App. – San Antonio, 1997, no pet.)
Phillips v. State 7
No. 05-08-01654-CR, 2010 WL 297942, at *1
(Tex. App. – Dallas Jan 27, 2010, pet. ref’d)
Scott v. State 7
No. 07-12-00375-CR, 2013 WL 4528821, at *1
(Tex. App. – Amarillo Aug. 26, 2013, no pet.)
Trevino v. State 7
No. 09-13-00075-CR, 2014 WL 5370663, at *7-8
(Tex. App. – Beaumont October 22, 2014, pet. ref’d)
(mem. op.))
Statutes
TEX. PENAL CODE §1.11(a)(1), (d) (West 2011) 3
TEX. PENAL CODE §12.42(C)(2)(West Supp. 2014) 3
iii
I. IDENTITY OF TRIAL COURT AND PARTIES
TO THE COURT OF CRIMINAL APPEALS:
NOW COMES Howard Larson Wampler, Jr., appellant, who would show the
Court that the trial court and interested parties herein are as follows:
HON. STEPHEN BRISTOW, Judge Presiding, 90th Judicial District Court,
Stephens County, Texas.
HOWARD LARSON WAMPLER, JR., appellant, TDCJ No. 1897163,
Allred Unit, 2701 FM 369 N, Iowa Park, Texas 76367.
TOM WATSON, trial attorney for appellant, 2441 So. 1st St., Abilene, Texas
79605.
TIM COPELAND, appellate attorney for appellant, P.O. Box 399, Cedar
Park, Texas 78613.
DEE PEAVY and RYAN CONWAY, Stephens County District Attorney
and Assistant District Attorney, respectively, trial and appellate attorneys for
appellee, the State of Texas, 516 4th St., Ste. 206, Graham, Texas 76450.
Petition for Discretionary Review
Howard Larson Wampler, Jr. v. The State of Texas
No. 11-13-00374-CR 1
II. STATEMENT REGARDING ORAL ARGUMENT
Appellant believes the clarity of the issue in this case is such that oral
argument would add nothing.
Petition for Discretionary Review
Howard Larson Wampler, Jr. v. The State of Texas
No. 11-13-00374-CR 2
PD No.
IN THE COURT OF CRIMINAL APPEALS
AT AUSTIN, TEXAS
HOWARD LARSON WAMPLER, JR., §
Appellant §
§ CAUSE NO. 11-13-00374-CR
V. §
§ TRIAL COURT NO. F 33837
THE STATE OF TEXAS, §
Appellee §
PETITION FOR DISCRETIONARY REVEW
FROM THE ELEVENTH COURT OF APPEALS
AT EASTLAND, TEXAS
CHIEF JUSTICE JIM WRIGHT, PRESIDING
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:
III. STATEMENT OF THE CASE
A. jury found Howard Larson Wampler, Jr. guilty of the second-degree felony
offense of indecency with a child by contact and found one enhancement ―true.‖
TEX. PENAL CODE §1.11(a)(1), (d) (West 2011) and R.R. 6, p. 23. The jury
assessed his punishment at confinement for life, and the trial court sentenced him
accordingly. TEX. PENAL CODE §12.42(C)(2)(West Supp. 2014) and see R.R.
7, p. 14.
Petition for Discretionary Review
Howard Larson Wampler, Jr. v. The State of Texas
No. 11-13-00374-CR 3
IV. STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE
The Eleventh Court of Appeals at Eastland, Texas, by Opinion dated
September 30, 2015, affirmed Wampler’s conviction and sentence. A copy of that
opinion is hereto attached as if fully incorporated herein at length.
V. GROUND FOR REVIEW
The Court of Appeals erred when it held that a question asked of veniremen
whether they favored punishment or rehabilitation in ―these kinds of cases‖ did not
affect appellant’s fundament rights to a presumption of innocence and a fair trial.
See and cf. Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000); also see R.R. 3,
pp. 53-61).
VI. SUMMARY OF THE ARGUMENT
The State asked an improper commitment question of veniremen calculated
to appeal to community prejudice which could only be satisfied by a finding of guilt.
Specifically, the State asked potential jurors whether they believed punishment or
rehabilitation was the proper goal of the criminal justice system ―in these cases‖.
Since ―rehabilitation‖ was not an option in ―this kind of case‖ (only imprisonment),
the question constituted an improper commitment question and implicated
appellant’s fundamental right to a fair trial and his presumption of innocence.
Petition for Discretionary Review
Howard Larson Wampler, Jr. v. The State of Texas
No. 11-13-00374-CR 4
VII. BACKGROUND AND STATEMENT OF PERTINENT EVIDENCE
Wampler did not challenge the sufficiency of the evidence. Instead, his appeal
focused on error which occurred during the State’s voir dire. Relevant to that focus,
the following occurred, as noted by the Court of Appeals in its opinion at page 2:
At the end of the State’s voir dire, the prosecutor began an
explanation of the goals of the criminal justice system. She explained
the following:
Okay. I like to ask juries this: It’s a philosophical
question and there’s no right or wrong answer, and this is
the last question I’m going to ask you and then I’ll let
[defense counsel] talk to you. I’m sorry if I’ve been long-
winded. This is an important case.
I’m going to go row by row, and I just want you to
think about it, but in our system, with our criminal justice
system, a lot of people think that punishment is a better
goal than rehabilitation. Some people think that you’re
likely to deter or prevent crime if you have high penalties
and do punishment for the people that commit these
crimes. A lot of people on the other hand think that
rehabilitation is the way to go; that if you focus on the
offender, on the defendants in these cases, and provide
them help that that is more likely to prevent crime than the
punishment regime.
So I’m going to go through and which way do you
lean. And not middle ground, but are you more of a
punishment, do you believe more in the punishment
theory, or more in the rehabilitation theory?
(—R.R. 3, p. 54).
Petition for Discretionary Review
Howard Larson Wampler, Jr. v. The State of Texas
No. 11-13-00374-CR 5
The State asked five veniremen this question, and all five answered.
The sixth venireman, however, stated that he could not answer the
question without first hearing the case. (R.R. 3, p. 56). When the State
pressed the venireman for an answer, Appellant objected to the question
and claimed it was an impermissible commitment question. The trial
court overruled Appellant’s objection and then instructed the State to
move on if the venireman did not have a clear viewpoint. (R.R. 3, p.
55-56). The State then asked the next forty-nine veniremen the same
question. (R.R. 3, pp. 56-61) and see Slip op. at 2.
VIII. COURT OF APPEALS’ DECISION
Wampler argued on appeal that the trial court committed fundamental error
when it allowed the State to appeal to community prejudice by asking the veniremen
whether they ―leaned‖ toward a criminal justice system where punishment for people
that commit ―these crimes‖ is a better goal than rehabilitation. ―Rehabilitation,‖
after all, was not an option in this case – only incarceration. However, the Court of
Appeals found that Wampler failed to timely object to the State’s question so his
contention on appeal that the question was improper was waived. (Slip op. at 4,
citing Phillips v. State, No. 05-08-01654-CR, 2010 WL 297942, at *1 (Tex. App. –
Dallas Jan 27, 2010, pet. ref’d) (not designated for publication) (determining that the
error was not fundamental)) and also see Scott v. State, No. 07-12-00375-CR, 2013
Petition for Discretionary Review
Howard Larson Wampler, Jr. v. The State of Texas
No. 11-13-00374-CR 6
WL 4528821, at *1 (Tex. App. – Amarillo Aug. 26, 2013, no pet.)(mem. op. not
designated for publication). Finally, the Court of Appeals held that the trial court
did not commit fundamental error when it allowed the question. The Court
compared the question to arguments which appeal to community prejudice which
are waived if the defendant does not timely object to the improper argument. (Slip
op. at 4, citing e.g., Trevino v. State, No. 09-13-00075-CR, 2014 WL 5370663, at
*7-8 (Tex. App. – Beaumont October 22, 2014, pet. ref’d) (mem. op.)). (Slip op. at
4).
IX. ARGUMENT
The Court of Appeals erred in finding that the offending question did not
affect appellant’s fundamental rights to the presumption of innocence and a fair trial.
Improper Commitment Question
Here, the State’s question propounded to each venire member constituted an
improper commitment question because the nature of the case dictated only one
result was possible on conviction--imprisonment. After all, rehabilitation was not
available for consideration by the jury in his case because, on a finding of guilt,
punishment was automatically assessed at life imprisonment. Since the ―option‖ of
rehabilitation was not available to the jury, the State’s question was really designed,
not to inquire how the jurors felt philosophically about ―this kind of case,‖ but to
Petition for Discretionary Review
Howard Larson Wampler, Jr. v. The State of Texas
No. 11-13-00374-CR 7
insure that any jurors ultimately chosen were prejudiced for punishment, thus
guaranteeing a finding of guilt ―in these kinds of cases‖ as sought by the State.
Fundamental Error
While true that Wampler cannot cite a case that holds that an improper voir
dire commitment question constitutes fundamental error, a plurality of this Court has
held that improper comments in voir dire that compromised a defendant’s
presumption of innocence did not require an objection to preserve the issue for
appeal. Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000)(plurality op.). In that
case, a plurality of the judges of the Texas Court of Criminal Appeals held that the
trial judge’s comments indicating to members of the venire that defendant was
considering entering into a plea agreement and that the judge would have preferred
that defendant plead guilty were of constitutional dimension and required no
objection to preserve the issue for appeal. (Per Johnson, J., with three judges
concurring and two judges concurring in the judgement.) Here, the State’s question
propounded to each venire member constituted an improper commitment question
because the nature of the case dictated only one result was possible on conviction--
imprisonment. That intended result undermined Wampler’s constitutionally
protected presumption of innocence. After all, rehabilitation was not available for
consideration by the jury in a case where, on a finding of guilt, punishment was
automatically assessed at life imprisonment. There were no real ―options‖ available
Petition for Discretionary Review
Howard Larson Wampler, Jr. v. The State of Texas
No. 11-13-00374-CR 8
to the jury, and the State’s question was really designed, not to inquire how the jurors
felt philosophically about ―this kind of case,‖ but to insure that the jury ultimately
chosen was prejudiced for punishment, thus guaranteeing a finding of guilt ―in these
kinds of cases‖ as sought by the State. By couching the question as one applicable
in ―this kind of case‖, the question impinged on Wampler’s constitutionally
guaranteed presumption of innocence and thus his right to a fair trial.
The State’s question here closely resembled what the appellate court found
impermissible in Mata v. State, 952 S.W.2d 30, 33 (Tex. App. – San Antonio, 1997,
no pet.), which held improper the argument: ―…[in] an aggravated sexual assault
such as this, probation is not what this community and what the State would want.‖
That argument, the Mata court reasoned, was pointedly aimed at securing the jury
members’ guilty verdict by an improper appeal to community prejudice. In like
fashion, the question posed to the jury in this case was an attempt to appeal to
potential jurors predisposed and prejudiced to a finding of guilt in ―these kinds of
cases.‖ Moreover, the taint associated with the described error affected the entire
venire panel. After all, the impermissible question was put to the entire panel, over
objection, row by row. When that result is reached, i.e., the constitutionally tainted
portion of trial encompasses the entire jury-selection process, ―…it has been almost
universally held that relief involves a new voir dire and a new jury; perforce, it
necessitates a new trial.‖ Steadman v. State, 360 S.W.3d 499 (Tex. Crim. App.
Petition for Discretionary Review
Howard Larson Wampler, Jr. v. The State of Texas
No. 11-13-00374-CR 9
2012). Because the State’s question sought to appeal to community prejudice to
deny his constitutionally protected presumption of innocence, the Court of Appeals
erred in finding that the trial court did not commit fundamental error when it allowed
the prosecutor to ask the complained of question during voir dire.
X. PRAYER
WHEREFORE, Mr. Wampler prays that this Court reverse the judgment of
the appellate court and remand for consideration of egregious harm and prejudice to
Wampler’s constitutionally protected presumption of innocence.
COPELAND LAW FIRM
P.O. Box 399
Cedar Park, TX 78613
Mobil/Text: 512.897.8196
Fax: 512.215.8114
Email: tcopeland14@yahoo.com
By: /s/ Tim Copeland
Tim Copeland
State Bar No. 04801500
Attorney for Appellant
Petition for Discretionary Review
Howard Larson Wampler, Jr. v. The State of Texas
No. 11-13-00374-CR 10
XI. CERTIFICATE OF SERVICE AND OF
COMPLIANCE WITH RULE 9
This is to certify that on October 7, 2015, a true and correct copy of the above
and foregoing document was served on the State Prosecuting Attorney, PO Box
12405, Capitol Station, Austin, TX 78711, and on Dee Peavy and Ryan Conway,
Stephens County District Attorney and Assistant District Attorney, respectively, 516
4th St., Ste. 206, Graham, Texas 76450 in accordance with the Texas Rules of
Appellate Procedure, and that the Petition for Discretionary Review is in compliance
with Rule 9 of the Texas Rules of Appellate Procedure and that portion which must
be included under Rule 9.4(i)(1) contains 1929 words.
/s/ Tim Copeland
Tim Copeland
Petition for Discretionary Review
Howard Larson Wampler, Jr. v. The State of Texas
No. 11-13-00374-CR 11
11TH COURT OF
APPEALS
EASTLAND,
TEXAS
JUDGMENT
Howard Larson Wampler, Jr., * From the 90th District
Court of Stephens
County, Trial Court
No. F33837.
Vs. No. 11-13-00374-CR * September 30, 2015
The State of Texas, * Opinion by Wilson, J.
(Panel consists of: Wright, C.J.,
Wilson, J., and Bailey, J.)
This court has inspected the record in this cause and
concludes that there is no error in the judgment below.
Therefore, in accordance with this court's opinion, the judgment
of the trial court is in all things affirmed.
Opinion filed September 30, 2015
In The
ELEVENTH COURT OF APPEALS
No. 11-13-00374-CR
HOWARD LARSON WAMPLER, JR., Appellant
v.
THE STATE OF TEXAS, Appellee
On Appeal from the 90th District Court
Stephens County, Texas
Trial Court Cause No. F33837
O P IN ION
The jury found Howard Larson Wampler, Jr. guilty of the second-
degree felony offense of indecency with a child by contact and found one
enhancement "true." TEX. PENAL CODE ANN. § 21.1 l (a)(l), (d) (West
2011). The jury assessed his punishment at confinement for life. See PENAL
§ 12.42(c)(2) (West Supp. 2014). The trial court sentenced him accordingly.
Appellant asserts two issues on appeal. We affirm.
I. Background Facts
Appellant does not challenge the sufficiency of the evidence, so we
only outline those facts relevant to his appeal. At the end of the State's voir
dire, the prosecutor began an explanation of the goals of the criminal justice
system. She explained the following:
Okay. I like to ask juries this: It's a philosophical question,
and there's no right or wrong answer. And this is the last question
I'm going to ask you and then I'll let [defense counsel] talk to
you. I'm sorry if I've been long-winded. This is an important
case.
I'm going to go row by row, and I just want you to think
about it, but in our system, with our criminal justice system, a lot
of people think that punishment is a better goal than
rehabilitation. Some people think that you're likely to deter or
prevent crime if you have high penalties and do punishment for
the people that commit these crimes. A lot of people on the other
hand think that rehabilitation is the way to go; that if you focus
on the offender, on the defendants in these cases, and provide
them help that that is more likely to prevent crime than the
punishment regime.
At the end of this explanation, the State asked this question:
So I'm going to go through and which way do you lean.
And not middle ground, but are you more of a punishment, do you
believe more in the punishment theory, or more in the
rehabilitation theory?
The State asked five veniremen this question, and all five answered. The
sixth venireman, however, stated that he could not answer the question
without first hearing the case. When the State pressed the venireman for an
answer, Appellant objected to the question and claimed it was an
impermissible commitment question. The trial court overruled Appellant's
objection and then instructed the State to move on if the venireman did not
have a clear viewpoint.
2
II. Analysis
Appellant contends that the trial court abused its discretion when it
overruled his objection to the State's question because the question (2)
was calculated to appeal to community prejudice. A trial court has wide
discretion in its control of voir dire. Barajas v. State, 93 S.W.3d 36, 38
(Tex. Crim. App. 2002); Shipley v. State, 790 S.W.2d 604, 608 (Tex.
Crim. App. 1990). We review the ruling of the trial court on an allegedly
improper commitment question during voir dire for an abuse of
discretion. Standefer v. State, 59 S.W.3d 177, 179 (Tex. Crim. App.
2001); Atkins v. State, 951 S.W.2d 787, 790 (Tex. Crim. App. 1997).
A. Issue One: Commitment Question
"[L]itigants are given 'broader latitude' . . . to inquire into a
prospective juror's general philosophical outlook on the justice system
when they conduct voir dire. Vrba v. State, 151 S.W.3d 676, 678 (Tex.
App.-Waco 2004, pet. ref d) (quoting Sells v. State, 121 S.W.3d 748,
756 n.22 (Tex. Crim. App. 2003)). A question is proper if it seeks to
discover a juror's views on an issue applicable to the case. Shipley, 790
S.W.2d at 608. But litigants may not ask commitment questions.
Standefer, 59 S.W.3d at 179. A commitment question is a voir dire
question that seeks to "commit a prospective juror to resolve, or to refrain
from resolving, an issue a certain way after learning a particular fact."
Id. A party must make a timely, specific objection at the earliest
possible opportunity in order to preserve error that a voir dire question
was improper. Ross v. State, 154 S.W.3d 804, 807 (Tex. App.-
Houston [14th Dist.] 2004, pet. ref’d); accord Turner v. State, 805
S.W.2d 423, 431 (Tex. Crim. App. 1991). If one venireman answered
an allegedly improper question, and the defendant failed to object,
then the defendant's argument is waived. See Montgomery v.
State,198
S.W.3d 67, 74 (Tex. App.-Fort Worth 2006, pet. ref d). In addition, if a
party asks an improper commitment question, that error may be waived if
a timely objection is not made. See Phillips v. State, No. 05-08-01654-CR,
2010 WL 297942, at *1 (Tex. App.-Dallas Jan. 27, 2010, pet. ref d) (not
designated for publication) (determining that the error was not a
fundamental error); see also Scott v. State, No. 07-12-00375- CR, 2013
WL 4528821, at *1 (Tex. App.-Amarillo Aug. 26, 2013, no pet.) (mem.
op., not designated for publication). Here, five veniremen answered the
allegedly improper question before Appellant objected. Thus,
Appellant failed to timely object, and he has waived this complaint on
appeal. See TEX. R. APP. P. 33.l (a); Montgomery, 198 S.W.3d at 74;
Ross, 154 S.W.3d at 807. We overrule Appellant's first issue.
B. Issue Two: Fundamental Error - Community Prejudice
Appellant contends that the State's commitment question also was
improper because it "was calculated to appeal to community prejudice which
could only be satisfied by a finding of guilt." Appellant argues the
"rehabilitation versus punishment" question constituted fundamental error
because rehabilitation was not an option in this case. In addition, Appellant
argues that the question impermissibly undermined his constitutionally
protected presumption of innocence. Contentions that the State asked an
improper question in voir dire, as we previously explained, require a timely
objection from the defendant to preserve e11'or. See Scott, 2013 \VL
4528821, at *1; Huff v. State, No. 07-10-00174-CR, 2010 WL 4828491, at
*2 (Tex. App.-Amarillo Nov. 29, 2010, no pet.) (mem. op., not
designated for publication). Appellant cites no case that held that a voir
dire question appealing to community prejudice constituted fundamental
error, and this court has not found one. We have found several cases that
4
hold that appeals to community prejudice, in closing arguments
before a jury, are waived if the defendant does not timely object to the
improper argument. See, e.g., Trevino v. State, No. 09-13-00075-CR,
2014 WL 5370663, at *7-8 (Tex. App.-Beaumont Oct. 22, 2014, pet. ref d)
(mem. op.);Garcia v. State, No. 04-96-00982-CR, 1997 WL 731969, at *1-2
(Tex. App.-San Antonio Nov. 26, 1997, pet. ref d) (not designated for
publication). Appellant failed to timely object to the State's question.
We disagree with Appellant's assertion that the State's question affected
the presumption of innocence, and we cannot hold that the trial court
committed fundamental error when it permitted the prosecutor to
the complained-of question during voir dire. We overrule Appellant's
second issue.
III. This Court 's Ruling
We affirm the judgment of the trial court.
MIKE WILLSON JUSTICE
September 30, 2015
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C. J.,
Wilson, J., and Bailey, J.
5