Kathi Ann Rogers v. State of Texas ( 2011 )

Opinion filed June 16, 2011
In The
Eleventh Court of Appeals
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No. 11-09-00021-CR
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KATHI ANN ROGERS, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 4
Tarrant County, Texas
Trial Court Cause No. 1081077D
MEMORANDUM OPINION
The jury convicted Kathi Ann Rogers of the offense of possession of less than one gram
of methamphetamine. Upon a plea of true to the enhancement paragraph, the trial court assessed
punishment at confinement for four years. We affirm.
Appellant presents four issues for review. In the first and second issues, she complains
that the prosecutor improperly attempted to commit some of the members of the venire panel to a
particular result based upon certain facts. In the third and fourth issues, appellant asserts that the
trial court erred in denying her motion to suppress because she was impermissibly detained.
With respect to the first and second issues, appellant is correct in that an attorney cannot
attempt to bind or commit prospective jurors to a particular verdict or result based on a
hypothetical set of facts. See Standefer v. State, 59 S.W.3d 177, 179 (Tex. Crim. App. 2001).
The purpose for prohibiting such questions is ―to ensure that the jury will listen to the evidence
with an open mind–a mind that is impartial and without bias or prejudice.‖ Sanchez v. State, 165
S.W.3d 707, 712 (Tex. Crim. App. 2005). To determine whether a voir dire question called for
an improper commitment, we must first determine whether the particular question was in fact a
commitment question and, if so, then determine whether it was an improper one. Lee v. State,
206 S.W.3d 620, 621 (Tex. Crim. App. 2006). An improper commitment question attempts to
create a bias or prejudice in the prospective juror before he has heard the evidence, whereas a
proper voir dire question attempts to discover a prospective juror’s preexisting bias or prejudice.
Sanchez, 165 S.W.3d at 712. A commitment question is proper if it gives rise to a valid
challenge for cause and includes only those facts necessary to establish the challenge for cause.
Standefer, 59 S.W.3d at 181-82.
Appellant’s first issue relates to the following question asked by the prosecutor to a
venireman who was of the opinion that ―it’s a waste of time‖ to try cases where a small amount
of controlled substance is involved:
If you were chosen to sit as a juror on this case and we proved to you beyond a
reasonable doubt that this defendant was in possession of a chemically-created
substance -- and in the case we’re talking about methamphetamine -- of less than
a gram, and you believed that beyond a reasonable doubt, would you find her
guilty or would you find her not guilty because of your feelings?
Appellant objected, and the trial court overruled the objection.
The State contends that appellant waived his objection to this question by failing to object
to other questions on this topic that were posed to various prospective jurors. We disagree. See
Halprin v. State, 170 S.W.3d 111, 118-21 (Tex. Crim. App. 2005) (where the court addressed the
Standefer issue with respect to the questions to which the defendant had objected at trial, but
held that the defendant had waived the Standefer issue with respect to the questions to which he
had not objected). The State also contends that appellant’s objection at trial was not sufficient to
notify the trial court of his complaint. The record shows that, after the prosecutor asked the
question, appellant objected ―under Standifer‖ [sic]. As did the court in Halprin when the
defendant objected ―violation of Standifer [sic],‖ we will assume that appellant’s objection was
sufficient to alert the trial court to a claim that the prosecutor’s question was an improper
commitment question. 170 S.W.3d at 119-20.
The question at issue in the present case was clearly a commitment question, as it sought
to elicit a commitment from a potential juror as to whether or not he would convict appellant if
the amount of methamphetamine that she possessed was less than one gram. However, it was
not an improper commitment question because it would have led to a challenge for cause and
because it did not include any evidentiary facts or non-statutory manners and means. See
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Standefer, 59 S.W.3d at 182 (―The State could have permissibly questioned the prospective
jurors about their ability to follow a law that holds a person guilty of possession even though the
possession involves only a residue amount of the drug in question.‖); see also Cardenas v. State,
325 S.W.3d 179, 189 (Tex. Crim. App. 2010). Appellant’s first issue is overruled.
Appellant’s second issue relates to the following colloquy from voir dire regarding the
meaning of the term ―possession‖:
[PROSECUTOR]: . . . . So care, custody, control, or management. What
are the ways that a person can possess drugs? Mr. Bradshaw said if they have it
on their person, maybe in their pocket. What else? Where else might a person
have something that shows that they are in possession of it, but it’s not necessarily
in their pocket?
VENIREWOMAN: In their purse, on their --
[PROSECUTOR]: Okay. I believe Ms. Bowles, you said in your purse?
VENIREWOMAN BOWLES: Yes.
[PROSECUTOR]: Exactly, that’s a great --
Appellant then objected under Standefer that the prosecutor was improperly attempting to bind
the prospective jurors. Appellant’s objection to the prosecutor’s question was untimely because
it was not made at the earliest possible opportunity. Turner v. State, 805 S.W.2d 423 (Tex. Crim.
App. 1991); Montgomery v. State, 198 S.W.3d 67, 74 (Tex. App.—Fort Worth 2006, pet. ref’d).
Appellant, therefore, preserved nothing for review. Appellant’s second issue is overruled.
In her third and fourth issues, appellant complains that the trial court erred in denying her
motion to suppress because she was impermissibly detained beyond the scope of the original
purpose for her detention. Appellant relies upon the Fourth Amendment in her third issue and
upon the state constitution in her fourth issue.
At a hearing on a motion to suppress, the trial court is the sole factfinder and the judge of
the witnesses’ credibility, and we may not disturb any finding that is supported by the evidence
unless an abuse of discretion is shown. Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App.
1997); Davis v. State, 829 S.W.2d 218 (Tex. Crim. App. 1992). In reviewing a trial court’s
ruling on a motion to suppress, appellate courts must give great deference to the trial court’s
findings of historical facts as long as the record supports the findings. Guzman, 955 S.W.2d at
87. Because the trial court is the exclusive factfinder, appellate courts review the evidence
adduced at the suppression hearing in the light most favorable to the trial court’s ruling.
Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We also give deference to the
trial court’s rulings on mixed questions of law and fact when those rulings turn on an evaluation
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of credibility and demeanor. Guzman, 955 S.W.2d at 87. Where such rulings do not turn on an
evaluation of credibility and demeanor, we review the trial court’s actions de novo. Id.
The record shows that appellant was stopped by Officer M.E. Byrd for running two stop
signs. Officer Byrd testified that appellant seemed frantic and that, before he had a chance to ask
any questions, appellant stated that her daughter was having an asthma attack. Though the
daughter did not seem to be having any trouble breathing, Officer Byrd asked if she needed an
ambulance. Appellant then began volunteering information on other topics, including that she
was on parole for possession of a controlled substance. Officer Byrd had appellant step out of
the vehicle. Approximately fifteen minutes after the initial stop, Officer Byrd asked appellant for
consent to search the vehicle. Appellant voluntarily consented, both verbally and in writing.
During the search of appellant’s car, Officer Byrd found three baggies, a metal pipe, and a scale
in appellant’s purse. Two of the baggies contained residue, and one of the baggies contained a
crystal substance that was later determined to be methamphetamine.
Appellant correctly states that an investigative detention must be temporary and last no
longer than is necessary to effectuate the purpose of the stop. Florida v. Royer, 460 U.S. 491,
500 (1983); Davis v. State, 947 S.W.2d 240, 243 (Tex. Crim. App. 1997). In this case, however,
appellant was stopped for a traffic violation and, within fifteen minutes and prior to the
effectuation of the purpose of the traffic stop, had consented to a search of her vehicle. The trial
court did not abuse its discretion in determining that appellant was not unnecessarily detained.
Furthermore, appellant does not challenge the voluntariness of her consent. If consent is given
voluntarily, a search incident to that consent is not unreasonable. Reasor v. State, 12 S.W.3d
813, 818 (Tex. Crim. App. 2000). Appellant’s third and fourth issues are overruled.
The judgment of the trial court is affirmed.
JIM R. WRIGHT
June 16, 2011 CHIEF JUSTICE
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel1 consists of: Wright, C.J.,
McCall, J., and Hill, J.2
1
Rick Strange, Justice, resigned effective April 17, 2011. The justice position is vacant pending appointment of a
successor by the governor.
2
John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.
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