Voir Dire, Inability to Consider Full Range of Punishment: Proper Objection and Practice to Preserve Error for Appeal
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
Sex offenses involving children are beyond a doubt the most difficult to defend, particularly when the allegations appear compelling and the witnesses are believable (here, here, and here). These kinds of sexual assault allegations are easy to indict and even easier to prosecute. All the prosecution needs is the victim’s testimony to secure and sustain a conviction. These offenses are difficult to defend because potential jurors enter the trial setting with a predisposed bias against anyone charged with a sex offense against a child. While the defense counsel tries to exclude these biased jurors from the jury, either through peremptory challenges or challenges for cause, too many effectively conceal their bias in order to serve and convict. These jurors want to be part of a process that convicts the insidious “child molester.”
Antonio Zavala Cardenas was indicted for three counts of aggravated sexual assault of a child and one count of indecency with a child. The evidence against him was indeed compelling. His aunt discovered him in bed with her four-year-old daughter, and suspecting the worse, she pulled the covers back to see her daughter’s pants and underwear pulled down and her nephew hurriedly trying to refasten his trousers. Besides the aunt’s testimony, the child testified that Cardenas had removed her underwear, exposed his penis to her, and rubbed his penis against her genitalia. Police testified that Cardenas admitted in a written statement that he had put his “hand down in front of [the child’s] pants” and rubbed “circles on the top of her vagina.”
Prior to the voir dire process, the trial judge explained the general law concerning the charged offenses and the permissible range of punishments. The judge informed the venire panel that Cardenas was:
“ … charged with the offense of aggravated sexual assault of a child. The range of punishment for that offense is not less than five years nor more than 99 years or life in the Institutional Division of the Texas Department of Criminal Justice. In addition to that, a fine of up to $10,000 may be assessed. The range of punishment for the offense of indecency with a child is not less than two nor more than 20 years in the Institutional Division of the Texas Department of Criminal Justice. And in addition to that a fine of up to $10,000 may be assessed in that case also.
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