Gustavo Ramirez v. State ( 2005 )

NO. 07-04-0512-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

FEBRUARY 24, 2005

______________________________



GUSTAVO RAMIREZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

NO. B15012-0306; HONORABLE ED SELF, JUDGE

_______________________________

Before QUINN and REAVIS and CAMPBELL, JJ.

ABATEMENT AND REMAND

Pursuant to a guilty plea, appellant Gustavo Ramirez was convicted of burglary and punishment was assessed at two years in a state jail facility and a $600 fine, suspended for three years. After appellant's plea of true and presentation of evidence in support of the State's motion to revoke, the trial court revoked community supervision and imposed the original sentence. Appellant filed a pro se notice of appeal. The clerk's record and reporter's record from the revocation hearing have both been filed. Appellant's brief was due to be filed on December 20, 2004, but has yet to be filed. Also, no motion for extension of time has been filed. By letter dated January 25, 2005, appellant was notified of the defect and also directed to either file his brief or a response by February 4, 2005. Appellant did not respond and the brief remains outstanding.

Therefore, we now abate this appeal, and remand the cause to the trial court for further proceedings pursuant to Rule 38.8(b)(2) and (3) of the Texas Rules of Appellate Procedure. Upon remand, the trial court shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing to determine the following:

1. whether appellant desires to prosecute the appeal; and

2. whether appellant is indigent and entitled to appointed counsel.

The trial court shall cause a hearing to be transcribed. Should it be determined that appellant does want to continue the appeal and is indigent, then the trial court shall also take such measures as may be necessary to assure appellant effective assistance of counsel, which measures may include the appointment of counsel. If counsel is appointed, the name, address, telephone number, and state bar number of said counsel shall be included in the order appointing new counsel. Finally, the trial court shall execute findings of fact, conclusions of law, and such orders as the court may enter regarding the aforementioned issues, and cause its findings and conclusions to be included in a supplemental clerk's record. A supplemental record of the hearing shall also be included in the appellate record. Finally, the trial court shall file the supplemental clerk's record and the supplemental reporter's record with the Clerk of this Court by Friday, March 25, 2005.  

It is so ordered.

Per Curiam

Do not publish.

appellant's counsel spent her allotted time questioning the venire members on a variety of subjects, including the elements of the offense, the State's burden of proof, the law of parties, relationships with other jurors, and past criminal trial experiences. Counsel also expended considerable time evaluating the venire members' ability to follow the law if the State failed to prove an essential element of the offense. ⁽²⁾ This topic generated a number of individual responses from the panel and required additional instruction from the court. To compensate for the additional instruction, the court granted counsel an additional five minutes to conclude her questioning. Nothing suggests that any of the questions asked or topics discussed by counsel were irrelevant, immaterial, or unnecessarily repetitious. Considering the nature of the offense, the subject matter covered, and the time allotted, we cannot conclude that counsel's request to ask the additional question was merely an attempt to prolong voir dire.

Under the second prong of the McCarter test, we look at whether the requested question was a proper question for voir dire. Id. A question is proper if it is designed to discover a venire member's views on an issue applicable to the case and does not attempt to commit a juror to a particular verdict based on particular facts. Barajas, 93 S.W.3d at 38. In the present case, the State concedes it would have been proper for counsel to question the prospective jurors regarding their relationships with district attorneys or law enforcement personnel because the question relates to potential bias. We agree with the State's assessment and conclude that the question requested by counsel was proper here to ensure a fair and impartial jury.

Although the State concedes counsel's question was proper, it maintains that the trial court did not abuse its discretion in denying counsel the opportunity to ask the question because the topic had already been discussed with the panel. To support its argument, the State cites Ratliff for the proposition that questions which are "irrelevant, immaterial, or unnecessarily repetitious" may be considered as attempts to prolong voir dire. Ratliff, 690 S.W.2d at 599. Here, the record reflects that, during voir dire, both the court and the prosecutor asked questions referring to bias and discussed how bias should not be considered when evaluating the credibility of a witness. In fact, the court specifically inquired whether any of the venire members had relatives that were police officers.

Even so, it is clear that "defense counsel may not be precluded from the traditional voir dire examination because the questions asked are repetitious of those asked by the court and prosecutor." E.g., McCarter, 837 S.W.2d at 121. Appellant's counsel had the right to question the prospective jurors in her own individual manner "to emphasize a point or uncover a hidden bias and [should] not be forced to rely on other parties to ask similar questions." Id.; Williams v. State, 804 S.W.2d 95, 107 (Tex.Cr.App. 1991). Therefore, we disagree with the State's position.

We also disagree with the State's contention that appellant's objection was not preserved for appellate review because it consisted of a general topic for discussion which could contain both proper and improper inquiries. See Dhillon v. State, 138 S.W.3d 583, 589 (Tex.App.-Houston [14th Dist.] 2004, no pet.). We are aware that a voir dire question that is so vague and broad as to constitute a global fishing expedition fails to preserve error because it is impossible for a reviewing court to determine whether it was relevant and properly phrased. Id.; Barajas, 93 S.W.3d at 39. However, here, appellant's counsel requested to ask one additional question specifically pertaining to relationships to district attorneys or law enforcement and "that relationship that they have." We find this distinguishable from counsel's request in Dhillon to question the potential jurors on "general topic[s] concerning drinking and driving." Dhillon, 138 S.W.3d at 590. We conclude counsel's request was not so vague or overly broad that it is impossible upon further review to determine whether the question was relevant and proper.

Accordingly, we find appellant's complaint is properly before us ⁽³⁾ and conclude the trial court abused its discretion in denying counsel the right to pose the additional question to the venire.

Harm Analysis

Having found error, we must now determine whether the trial court's restriction of voir dire was harmful. It is undisputed that the right to pose proper questions during voir dire examination is essential to the Sixth Amendment guarantees of assistance of counsel and the right to an impartial jury. Franklin v. State, 138 S.W.3d 351, 354 (Tex.Cr.App. 2004). See also Linnell v. State, 935 S.W.2d 426, 428 (Tex.Cr.App. 1996) (holding the right of appellant's counsel to question the members of the jury panel is necessary in order to intelligently exercise peremptory challenges). This right is also implicit in the right to assistance of counsel embodied in Article I, § 10 of the Texas Constitution. Gonzales v. State, 994 S.W.2d 170, 171 (Tex.Cr.App. 1999). Yet, the United States Supreme Court has never held that an erroneous restriction of voir dire is a structural error of a federal constitutional nature; therefore, it remains subject to harmless error analysis under Rule 44.2. Tex. R. App. P. 44.2; Gonzales, 994 S.W.2d at 171.

Under Rule 44.2, we are provided with two separate standards for determining whether a trial court's error is reversible. With respect to constitutional errors, the court of appeals must reverse the judgment "unless [it] determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment." Tex. R. App. P. 44.2(a). All other errors must be disregarded unless they affect a defendant's "substantial rights." Id. at (b). In a situation such as appellant's, when an error in the jury selection process infringes on a defendant's constitutional right to trial by an impartial jury, we must conduct a 44.2(a) analysis. Franklin, 138 S.W.3d at 355. Under this standard, if there is a reasonable likelihood that the error materially affected the jury's deliberations, then the error was not harmless beyond a reasonable doubt. Wesbrook v. State, 29 S.W.3d 103, 119 (Tex.Cr.App. 2000).

During voir dire, when the trial court asked whether any members of the panel had relatives that were police officers, an unidentified venire member responded that he was a retired police officer. However, the court made no further investigation and did not inquire as to whether he had any biases as a result of his employment. Another unidentified member of the panel stated he had a cousin who was a police officer, but he assured the court and the prosecutor he would wait and evaluate any witness before making a determination regarding credibility. At the guilt/innocence phase of appellant's trial, two law enforcement witnesses, a deputy and a detective from the Harris County Sheriff's Department, testified for the State.

The trial court's ruling on voir dire essentially precluded appellant's counsel from questioning the prospective jurors regarding any potential bias in favor of the State, its attorneys, or its law enforcement witnesses. In effect, the ruling also denied counsel the opportunity to further investigate the two unidentified venire members who responded to the court's initial inquiry regarding relationships to police officers. Because we have no responses from the panel in this regard, we have no way of ascertaining whether the unidentified members of the panel ultimately selected to serve as jurors were indeed impartial. Consequently, in reviewing the voir dire proceedings, it is not unreasonable to assume that one or more of the selected jurors could have been inclined to convict appellant because they were biased in favor of the State or its witnesses. Rule 44.2(a) does not permit us to find an error harmless based upon speculation or conjecture, and here, we simply cannot conclude beyond a reasonable doubt that the trial court's restriction of counsel's ability to question the prospective jurors regarding bias did not contribute to appellant's conviction.

Nonetheless, the State, citing Wappler v. State, 183 S.W.3d 765 (Tex.App.-Houston [1st Dist.] 2005, pet. struck), insists any error in disallowing counsel's question was harmless. In Wappler, the reviewing court determined that the lower court erred by denying counsel the opportunity to ask five otherwise proper questions after his time for voir dire had expired. Id. In conducting its harm analysis, relying on Rich v. State, 160 S.W.3d 575 (Tex.Cr.App. 2005), the court applied a "heightened" Rule 44.2(a) analysis evaluating the error in light of multiple evidentiary factors. Id. However, Rich involves a 44.2(b) analysis as opposed to a constitutional harmless error analysis under 44.2(a). Rich, 160 S.W.3d at 577 (explaining that because the court of appeals's 44.2(b) analysis was not contested, "we assume that to be the proper rule"). Furthermore, provided the Wappler court found the trial court's erroneous restriction of voir dire to be harmful, we do not find it to be persuasive authority supporting the State's position. Appellant's first issue is sustained. Our disposition of this issue precludes our consideration of appellant's remaining issues. Tex. R. App. P. 47.1.

Accordingly, the trial court's judgment is reversed and the cause remanded for a new trial.

Don H. Reavis

Justice

Quinn, C.J., dissenting.

Do not publish.

NO. 07-05-0154-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

JULY 14, 2006

______________________________



TYRONE BERNARD MACK,

Appellant

v.

THE STATE OF TEXAS,

Appellee

_________________________________

FROM THE 228^th DISTRICT COURT OF HARRIS COUNTY;

NO. 966216; HON. MARC CARTER, PRESIDING

_______________________________

Before QUINN, C.J., and REAVIS and HANCOCK, JJ.

Dissenting Opinion  

I would overrule appellant's complaint about his purported inability to voir dire the jury. Simply put, he waived the matter.

The record certainly reveals that appellant, through his counsel, sought to propound one more question to the jury after his allotted time for voir dire expired. So too does the record show that the trial court denied appellant the chance to ask the question. Yet, after voir dire ended, the litigants exercised their peremptory strikes, and the names of those comprising the jury were announced, the trial court asked: ". . . Defense, any objection to the jury as seated?" Appellant, through his counsel, responded: "No objection, Your Honor."

It is clear that one must preserve, through objection, complaints about conduct occurring at trial. See Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991) (so noting). So too is it clear that an objection formerly preserved may later be waived. For instance, an appellant expressly informing the trial court that he has "no objection" to evidence he previously tried to suppress is a case in point. By telling the court that he has no objection to the evidence, the complainant waives any error in the admission of that evidence. Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. App. 1986); Flores v. State, 129 S.W.3d 169, 171-72 (Tex. App.-Corpus Christi 2004, no pet.). This result is quite logical for one cannot be allowed to complain about that which he approved or helped instigate. And, this is no less true here.

The topic which appellant sought to broach during voir dire concerned potential bias of the jury. Admittedly, exploration of that subject was a means of affording him opportunity to assess whether various members of the venire were unacceptable by law or choice. Yet, in telling the trial court that he had "no objection" to the jury ultimately selected, appellant implicitly, if not explicitly, revealed his approval of those factfinders ultimately chosen. Having voiced his approval of those selected, appellant should be precluded, on appeal, from trying to attack those he approved. ⁽⁴⁾ So, for the reasoning implicit in Moraguez and its progeny, I conclude that appellant waived any complaint he had to the trial court's decision to limit voir dire as it did.

Brian Quinn

Chief Justice

Do not publish.

1. A third prong applies when counsel is prevented from questioning venire members individually, as opposed to collectively, but it is not applicable here. See McCarter, 837 S.W.2d at 119-21.

2. Counsel proposed a hypothetical in which the State failed to prove the element of jurisdiction.

3. The dissent concludes appellant waived his voir dire complaint because after the parties exercised their peremptory strikes, appellant's counsel stated she had no objection to the jury as seated. However, the majority does not believe counsel's response to the court's inquiry regarding the jury "as seated" amounted to an express, voluntary, and knowing waiver of her prior complaint concerning her inability to question the prospective jurors regarding bias. See Wappler v. State, 138 S.W.3d 331, 334 (Tex.Cr.App. 2004).

4.

I do not purport to address a situation wherein it is later discovered that a venire member may have withheld information or lied during voir dire. Nor do I address situations wherein conduct occurring or circumstances arising after voir dire may create basis for removing the juror.