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. 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.
“Probation is an option if the sentence is ten years or less. The defendant may be granted probation if, one, he has never before been convicted of a felony offense and the jury determines that the defendant deserves probation.”
The Texas Court of Criminal Appeals (“TxCCA”) in State v. Johnson held that both prosecutors and defense counsel are entitled to jurors willing to consider the entire range of punishment for the offense charged, including “the maximum to the minimum and all points in between.” The state’s highest court of criminal appeals in Fuller v. State specifically held that jurors have a duty to consider both “a situation in which the minimum penalty would be appropriate and … a situation in which the maximum penalty would be appropriate.” Thus, all prospective jurors must be committed to an unbiased consideration of the entire punishment range. Against the backdrop of this requisite duty for jury service, the TxCCA in Williams v. State and Jordan v. State held that a juror as a matter of law is biased if he/she unequivocally states that they cannot consider five years probation as a possible punishment for the lesser-included offense of murder in a capital-murder case.
To discover this kind of potential juror bias, the TxCCA in Standefer v. State approved the practice of prosecutors and defense counsel asking “proper” commitment questions of jurors to determine whether they can consider both the minimum and maximum range of punishments. This voir dire questioning process, however, is by no means open ended. For example, the TxCCA ruled in Barajas v. State that it was improper to ask prospective jurors whether they could be impartial in a case involving a victim who was eight to ten years of age; and in Moore v. State that it was improper to ask juror, who stated she could consider “youth” as a mitigating factor, whether she would consider youth before imposing the death penalty; and in Penry v. State that it was improper to ask jurors whether victim-impact evidence would prevent them from assessing a life sentence.
During Cardenas’ voir dire process, the prosecutor asked for a show of hands of those members of the venire panel who could not consider the full range of punishment for the indecency with a child offense. Several members raised their hands signaling they could not consider the full range of punishment for that offense. Defense counsel eliminated two of them with peremptory challenges. The prosecutor then turned his attention to the aggravated sexual assault of a child offenses, telling the venire panel that they had to “consider the full range of punishment … You don’t have to give it. You have to consider it … I am just telling you what the law says. It says for you to be on a jury, to sit here and make a decision … you have to be able to consider the full range.” Several dozen prospective jurors raised their hands.
Cardenas’ attorney pressed the issue. He explained the full range of punishment for both of the offenses charged, stressing the duty of jurors to consider all those ranges. The attorney’s final question that he posed to each prospective juror was if they could “honestly ever fairly consider on an aggravated sexual assault of a child as little as five years in prison and give probation as an appropriate punishment.” Fifty-two members of the venire panel individually said they could not consider the minimum sentence. Counsel wisely did not pursue the questioning for further explanation nor did he make any attempt to rehabilitate these prospective jurors.
At the end of the voir dire questioning process, defense counsel challenged forty-six prospective jurors for cause based on their stated inability to consider the full range of punishment. The trial court granted six challenges over the prosecution’s objection and eleven challenges that were either agreed to or not objected to by the prosecution. The court summarily denied the rest. Defense counsel then used all of his peremptory challenges before asking the court for more challenges, explaining that nine of his original peremptories had been used on jurors who should have been dismissed by the court for cause. The court denied the request and a jury was selected and sworn in over defense counsel’s objection. That jury convicted Cardenas on two of the three aggravated sexual of a child offenses and the one indecency with a child offense. The trial court granted defense counsel’s motion for a directed verdict of acquittal on one of the third aggravated sexual assault of a child offense. The jury assessed a punishment of 25 years on each of the remaining three counts.
Cardenas’ attorney appealed to the Second Court of Appeals sitting in Fort Worth, arguing the trial court had improperly denied Cardenas’ challenges for cause. Last year that court in Cardenas v. State reversed Cardenas’ conviction finding that defense counsel’s lone question, combined with the general explanation of law given by the trial judge and the prosecutor, timely preserved the issue for appeal; and further ruled that the trial judge abused his discretion by not granting defense counsel’s challenges for cause against all the jurors who unequivocally stated they could not consider the full range of punishments.
The prosecution sought discretionary review before the TxCCA and November 10, 2010 the courtCardenas v. State upheld the Second Court of Appeals’ ruling. In short order the TxCCA dispensed with the State’s preliminary argument that the appeals court erred when it concluded defense counsel had properly preserved the denial of his “challenges for cause” issue. The State premised its argument on the theory that defense counsel failed to ask any “follow-up questions” as to the venire panel’s appreciation of the law’s requirement.
The TxCCA disagreed, “When the venire members have repeatedly been told of their obligation under the law to consider the full range of punishment for the statutory offense and there is no indication of their confusion, the complaining party need not ask any follow-up questions regarding their full and complete understanding of the law to preserve the error.
“The jury pool assembled for [Cardenas’] trial had been twice apprised of the applicable range of punishment, once by the trial judge and again by the State, before defense counsel’s voir dire. There was no ambiguity or confusion in how the law was explained by either the trial judge or prosecutor. Indeed, the State was the first party to broach the topic of probation, providing the jury with a detailed explanation of its intricacies. The State was also the first party to ask if the panel members could consider the entire range of punishment. But the State simply asked for jurors to raise their hands if they could not consider the full range of punishment. Few volunteered. When defense counsel posed this question to each juror individually, two of them asked for further explanation, which counsel then gave. All of the others simply answered ‘Yes’ or ‘No.’ It is a fair inference that those jurors who did not ask questions or seek further clarification understood what probation is, that probation was an option in this case, and that five years in prison or on probation was the minimum punishment available. Therefore, anyone who responded in the negative to counsel’s question as to whether that juror could consider ‘as little as five years in prison and give probation as an appropriate punishment’ expressed a bias against a phase of law on which was the defense was entitled to rely. Absent any further questioning by the trial judge or the prosecutor to clarify each juror’s stated position, the judge was required to grant [Cardenas’] challenges for cause.”
The TxCCA was no more inclined to accept the State’s flimsy secondary argument that defense counsel’s question was an “improper commitment question;” that the question was “replete with facts that would have bound jurors to a certain answering after learning several ‘hypothetical’ facts that were taken straight from the facts of the actual case.” In support of this proposition, the State renewed the argument it presented at the trial level that defense counsel was required to add the phrase “if the facts justify it and the law allows it” in order to make it a proper commitment question and to establish “the proper foundation for challenges.”
Finding no such language was required, the TxCCA said: “First, [Cardenas’] counsel asked the jurors if they could ‘ever fairly consider’ five years in prison or give probation as an appropriate punishment in an aggravated sexual assault of a child case. The plain meaning of defense counsel’s question is ‘could you ever consider—under any facts at all—the minimum punishment?’ The word ‘ever’ would certainly encompass ‘if the facts justify it,’ thus the first half of the State’s proposed language is implicit in the question asked.
“Second, there is no doubt that the ‘law allow[ed]’ five years in prison or on probation as a punishment for aggravated sexual assault at the time this case was tried in 2005. Forcing defense counsel to tack on ‘if the law allows it’ would turn a correct statement of the offense’s minimum punishment into something far more enigmatic, especially since the trial judge, prosecutor, and defense counsel had already told the jurors what the minimum punishment was. [Cardenas’] counsel elicited a clear and concise response from each panel member as to whether he could consider the minimum punishment as the law allows. The second half of the State’s proposed language would not aid in explaining the law; it would almost certainly mystify the jurors, as they had already been told that the law did allow five years in prison or on probation as the minimum punishment.”
Cardenas offers significant guidance for defense attorneys trying to uncover juror bias in the jury selection process in child sexual assault cases. When a court fails to grant a challenge for cause, the key to preserving error for appeal is to frame a proper question as precisely as possible, use all preemptory challenges, request more strikes due to the court’s failure to dismiss the objectionable jurors and timely object to the formation of the jury before it is sworn. Even if the prosecutor or the trial court elects to proceed with additional clarification questioning of an admitted biased juror, proper and thorough objections might preserve the issue for appeal and give the defendant some future relief, which will not be available if proper objection and harm is not demonstrated by the record.
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair