Meyers, J., filed a dissenting opinion, in which Holcomb, J., joined.

In an act of judicial inconsistency, the majority needlessly overrules an unpublished opinion of the El Paso Court of Appeals, all the while invalidating workable, ten-year-old precedent of this Court. The majority holds that the question in this case was too vague and imprecise to be proper. This, despite the fact that the weight of our jurisprudence in the arena of voir dire has almost without exception focused on whether or not a question contained too much detail. See, e.g., Standefer v. State, 59 S.W.3d 177 (Tex. Crim. App. 2001). This, despite the fact that the trial judge’s ruling was explicitly based on the conclusion that the question contained too much factual detail. This, despite the fact that the State argues specifically: “ Here the appellant was attempting to ask broad-based ‘fair and impartial’ questions to the jury panel, which was appropriate, but then he tried to limit it to the exact age range of the victim in this case – eight to ten years old.” Not content to merely create its new law, the majority also effectively transforms voir dire into an impossible guessing game by holding that the same question that was too vague or imprecise to be proper was also an improper attempt to commit the jury. Barajas v. State, No. 415-99, slip op. at 7 (Tex. Crim. App. June 26, 2002) (hereinafter cited as “Majority Op.”). I protest. I object. I dissent.

The majority “cannot be certain to what issue in the case appellant’s question was relevant.” Majority Op. at 5. I can. The question was relevant to the potential jurors’ qualifications. Article 35.16 (a)(9) provides that a venire member may be challenged for cause if “he has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely … .” A defendant is entitled to rely on the constitutional guarantee of an impartial jury. See Tex. Const. art. 1, § 10. This is the law applicable to each and every case, and defense counsel should have been permitted to qualify potential jurors on it. It relates directly to a juror’s qualifications to serve: if the question had been asked and answered in the negative, the juror would not have been qualified to serve.

I also dispute the majority’s assessment of the possible objects of counsel’s question:

A. Determining Guilt

The majority takes issue with the question appellant sought to ask because it was not directed at whether the potential juror would resolve the issue of appellant’s guilt on the basis of the victim’s age. Majority Op. at 5-6. Had a potential juror answered that question in the negative, the argument goes, she would have been challengeable for cause. Id. I do not see from this how the majority reaches the conclusion that had a potential juror answered appellant’s question in the negative, she would not have been challengeable for cause.

I also dispute the majority’s reasoning in this portion of the opinion because it implies that the trial court “require[d] that [the] parties phrase questions in a way that is precise enough to glean relevant information from the venire member’s answer.” Id. This was the antithesis of the trial court’s ruling, which was made during the following exchange:

[Prosecutor]: We are not voir diring on this case. The question is whether or not the jury can consider probation in any kind of indecency with a child case that they can conceive of. That’s the issue. It’s not this case. He’s trying to voir dire on the facts of this case.

[Court]: You can voir dire in this regard. You can say whether or not they can consider probation with regards to indecency with a child, then you can say a child is someone under the age of whatever.

[Defense]: 17. And I would just further ask that I would ask would ask all those questions of each and every juror, and it’s–my understanding is I can ask these, but I can ask under 17?

[Court]: Yes, if the law defines a child as someone under 17.

[Defense]: I cannot be more specific than that?

[Court]: Correct.

To imply that the trial court made its ruling in an attempt to require greater precision of defense counsel is to recast the trial judge’s ruling in an entirely new, inaccurate light. It may be true that a trial court can require additional precision of a proposed question, but that is emphatically not what the trial court required here; here, the trial court required less specificity and not more.

B. Credibility

In this regard, the majority attempts to distinguish our opinion in Hernandez v. State, 508 S.W.2d 853 (Tex. Crim. App. 1974) on the basis that the question in Hernandez was precise and attempted to focus the venire members’ attention on a relevant issue. Majority Op. at 6. I reassert that this question was directed at a relevant issue: the potential jurors’ ability to be fair and impartial. To the extent that the question implicated the jurors’ ability to fairly weigh the testimony of a child complainant, the question focused the jurors’ attention on what may be the issue in an indecency with a child case. Because there are rarely witnesses to such offenses, the trials evolve into what may best be termed a swearing match. I understand that appellant’s counsel did not use precisely the same words as counsel in Hernandez did, but this hardly seems to rise to the level of a persuasive distinction.

C. Assessing Punishment

In this subsection of the majority opinion, appellant’s proffered question is rejected on the basis that it was an improper attempt to commit the venire members to assess or refrain from assessing punishment on the basis of the victim’s age. Majority Op. at 7. The same question the majority first rejected for its lack of precision is rejected because it might commit the jurors to a certain resolution! This portion of the majority opinion is not only short on logical support, its lack of clarity harms all of the parties who would benefit from a meaningful chance to voir dire prospective jurors: the defense, the state and the trial judge. First and foremost, this is so because it is impossible to understand what makes a question too imprecise and too precise or some variation thereof.

Second, this portion of the majority opinion effectively overrules a case delivered earlier this term, Standefer, 59 S.W.3d 177. In Standefer we held that “a question is a commitment question if one or more of the possible answers is that the prospective juror would resolve or refrain from resolving an issue in the case on the basis of one or more facts contained in the question.” 59 S.W.3d at 180. We continued and specifically addressed the question at issue in Nunfio v. State, 808 S.W.2d 482, 485 (Tex. Crim. App. 1991). “For example, the question, ‘If the victim is a nun, could [the prospective juror] be fair and impartial?’ does not ask the prospective juror to resolve or refrain from resolving any issue.” Standefer, 59 S.W.3d at 180.

At the time Standefer was handed down, I expressed my disagreement with the opinion. Standefer, 59 S.W.3d 177, 186-87 (Johnson, J., dissenting, joined by Meyers, Price and Holcomb, J.J.). I now find myself thrust into the role of Standefer’s unwitting defender. In Standefer, asking a potential juror whether she could be fair and impartial did not require the juror to resolve or refrain from resolving an issue. Standefer, 59 S.W.3d at 180. Now it apparently does. The sleight of hand involved in stating that “The appellant may not seek to commit venire members to assess or refrain from assessing punishment on this basis” does not alter the fact that “Could you be fair and impartial” does not call for a resolution in any sense of the term. Nor does it change the fact that the question does not, therefore, meet the definition of “commitment question” enunciated so recently in Standefer. See Majority Op. at 7. Why does the majority apply the challenge for cause test to a question that does not require a commitment? I cannot be sure. Either the law is already back to the state it was in before Standefer, and no one knows precisely which quantum of detail transforms an otherwise acceptable question into a commitment question, or the question was not a commitment question, and now all questions must conform to the challenge for cause test enunciated in Standefer.

I also think that to disallow a question such as the one appellant sought to ask is to misapprehend the nature of noncapital punishment hearings. The majority states, “If the appellant’s aim was to determine whether venire members would consider the victim’s age in assessing punishment, it was an improper pursuit.” Again, I ask why. The Legislature has made it abundantly clear that in the punishment phase of a noncapital trial, jurors may consider any information that the court deems relevant. Tex. Code Crim. Proc. Ann. art. 37.07(a)(1) (Vernon Supp. 2002). Whose interest does it serve to disallow counsel from inquiring about the many sources of information potential jurors can consider?

The majority recites the rules of stare decisis yet fails to show how Nunfio is actually badly reasoned or unworkable. At most, it seems that the Nunfio decision is one that the majority finds unacceptable. This is no basis for overruling decisions. I also disagree with the majority’s overruling of Nunfio because the law that remains in Nunfio’s stead is no more insightful or workable than the law that preceded it.

A. Reasoning

In making its arguments against Nunfio’s “reasoning,” the majority merely attacks Nunfio’s reliance on Abron v. State, 523 S.W.2d 405 (Tex. Crim. App. 1975) and Hernandez, 508 S.W.2d at 854. I think this attack is at once unpersuasive and misdirected in that it overstates Nunfio’s reliance on the cases and leaves Nunfio’s underlying reasoning intact.

In order to better convey the comparatively small role Abron and Hernandez played in the Nunfio holding, I quote the relevant portion of the opinion in full here:

The standard of review in a case where the defendant claims he was improperly restricted on voir dire is whether the trial court abused its discretion. See Smith v. State, 703 S.W.2d 641 (Tex. Crim. App. 1985) and cases cited therein; see also, Smith v. State, 513 S.W.2d 823 (Tex. Crim. App. 1974). The propriety of the question which the defendant sought to ask is determinative of the issue. Smith, 703 S.W.2d at 643. We have held that a question is proper if it seeks to discover a juror’s views on an issue applicable to the case. Id. at 643, citing Powell v. State, 631 S.W.2d 169 (Tex. Crim. App. 1982).
Here, the question posed by appellant’s counsel sought to determine potential bias or prejudice in favor of the victim by virtue of her vocation. Similar inquiries have been held to be proper. See, e.g., Abron …; Hernandez … . The question in this case was proper, and, thus, error is shown.

Nunfio, 808 S.W.2d at 484-85. On my reading of this discussion, the holding was based on the court’s conclusion that the question was proper because it sought to discover the jurors’ views on an issue applicable to the case, here bias in favor of the victim. The holding was not, as the majority implies, based solely on the question’s similarity to the questions asked in Hernandez and Abron.

Nor does the majority persuasively distinguish either case. The majority attempts to distinguish both cases by asserting that the questions in Abron and Hernandez were tailored to get to an issue in the case. Majority Op. at 7-8. As mentioned earlier, in a case that may devolve into a courtroom swearing match, questions about the potential jurors’ ability to be fair and impartial vis-á-vis a child complainant don’t merely “get to the heart of an issue,” they get to an issue that may be the heart of the trial. Finally, if the question in this appeal did not get to an issue in the case, then it hardly seems an appropriate candidate for commitment question status.

B. Unworkable Standard

The majority decries appellant’s question as “a license to go fishing, without providing any concrete information for the intelligent use of peremptory or for-cause challenges.” What the majority finds so objectionable about this question is still unclear to me. On the one hand it addressed one of the many areas that a juror may consider in assessing a sentence: the victim’s age. It also targeted the jurors’ ability to be impartial, and thereby, the potential jurors’ qualifications. See Tex. Code Crim. Proc. art. 35.16 (a)(9); Tex. Const. art. I, § 10. The cases upon which the majority relies in support of the assertion that the question here was a global fishing expedition are simply not relevant or persuasive.

In Boyd v. State, 811 S.W.2d 105, 119-20 (Tex. Crim. App. 1991), the trial court rejected defense counsel’s proffered questions because the defendant was being tried for capital murder and defense counsel refused to tie his questions to Texas’s statutory special punishment issues. Id. Such a holding is simply not dispositive for noncapital sentencing, during which the jury may consider any matter the court deems relevant to sentencing.

There are also several flaws in the majority’s reliance on Smith, 703 S.W.2d 641, 645 (Tex. Crim. App. 1985). First, our holding in Smith was based on our conclusion that the question was duplicitous as much as it was on our conclusion that the question was a global fishing expedition. Id. Second, in phrasing alone, the question in Smith was far broader than the question in Nunfio and in this case, both of which could be answered with a “yes” or “no.” It is also important to note that the Smith court was actually reversing a trial court’s disallowance of several questions as an abuse of discretion. One of the improperly disallowed questions was what the jury panel’s “idea of punishment” was and “what [the jurors] think its purpose should be.” Id. Such questions, which were held in Smith to be proper, are far more vague, imprecise and open-ended than that in Nunfio or the instant case.

Gonzales v. State, 3 S.W.3d 915 (Tex. Crim. App. 1999) is factually dissimilar and, indeed, points to some of the serious pitfalls of the majority opinion. In Gonzales, we rejected the appellant’s argument that one of the jurors had engaged in misconduct by making a false statement on a written juror questionnaire. In explaining why no error was presented by the juror’s false statement, we stated:

[W]e have long insisted that counsel be diligent in eliciting pertinent information from prospective jurors during voir dire in an effort to uncover potential bias or prejudice:
defense counsel has an obligation to ask questions calculated to bring out that information which might be said to indicate a juror’s inability to be impartial, truthful, and the like. Unless defense counsel asks such questions, we must hold, as we do here, that the purportedly material information which a juror fails to disclose is not really ‘withheld’ so as to constitute misconduct which would warrant a reversal.

Gonzales, 3 S.W.3d at 917 (quoting Jones v. State, 596 S.W.2d 134, 137 (Tex. Crim. App. 1980), overruled on other grounds, Sneed v. State, 670 S.W.2d 262, 266 (Tex. Crim. App. 1984)). I can think of no question more diligently directed at uncovering bias than “Can you be fair and impartial?” Yet the majority would disallow this question as too imprecise–all the while making incumbent on counsel the obligation to uncover bias. I do not think we should impose this obligation without giving counsel the tools to fulfill it.

For over a decade, litigators and trial courts functioned under the law enunciated in Nunfio. Today the majority overrules Nunfio in favor of law that is plagued with inconsistencies and will be impossible for trial courts and litigators to apply. Until this decision, a proper question on voir dire was one that (1) was relevant to an issue in the case, (2) did not commit the venire member to a conclusion based on a particular set of facts, (3) was not duplicitous or repetitious and (4) was in proper form. Dinkins v. State, 894 S.W.2d 330, 345 (Tex. Crim. App. 1995). Today, a question that was relevant to an issue in the case–the victim’s age and its effect on the victim’s credibility or the jury’s assessment of punishment–is no longer relevant. A question that earlier this term was not a commitment question has become one in the very same stroke it has become too vague and imprecise. I would not overrule Nunfio because I believe the doctrine of stare decisis requires greater forbearance than that exhibited by the majority today. If Nunfio must be overruled, however, I certainly would not leave in its wake law that makes meaningful voir dire a near- impossibility and essentially requires litigators to get their questions pre-approved with this Court. Accordingly, I dissent.

Filed June 26, 2002

Publish