Summary
In Miller, we held the trial court abused its discretion when it disallowed the questions, "'Can you set aside any bias if you find there's an offense against a child?
Summary of this case from In re Commitment of EustaceOpinion
NO. 09-11-00450-CV
07-26-2012
IN RE COMMITMENT OF JAMES ANTHONY MILLER
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 10-10-11905-CV
MEMORANDUM OPINION
The State of Texas filed a petition to commit James Anthony Miller as a sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 & Supp. 2011). A jury found that Miller suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. The trial court rendered a final judgment and an order of civil commitment. In one appellate issue, Miller contends that the trial court abused its discretion by limiting his questions to the venire panel. We reverse the trial court's judgment and remand the cause for further proceedings consistent with this opinion.
Litigants may question potential jurors to discover biases and to properly use peremptory challenges. In re Commitment of Hill, 334 S.W.3d 226, 228 (Tex. 2011). This right is subject to reasonable trial court control. Id. at 228-29. We review a trial court's refusal to allow a line of questioning during voir dire for abuse of discretion. Id. at 229. A trial court abuses its discretion when its denial of the right to ask a proper question denies intelligent use of peremptory challenges or prevents the determination of whether grounds exist to challenge a venireman for cause. Id.
During voir dire by Miller's counsel, some members of the jury panel expressed reservations about serving as a juror on a case involving children. At the conclusion of voir dire, Miller's counsel provided the following explanation to the trial court:
Your Honor, we need to be able to explore prejudices of the jury. And many of the jurors said they can listen to a case if there were two or more sexual offenses; but if it deals with children, they simply had a bias they couldn't overcome. And we need to be able to ask about children whether or not there's a diagnosis of pedophilia or not. It's still part of their evidence that's going to come into play.Counsel sought to ask either: (1) "Can you set aside any bias if you find there's an offense against a child? Can you listen to all the evidence and follow the law?" or (2) "Is anyone unable to hear topics about children? Can you listen to the evidence and follow the law?" The trial court refused Miller's request to pose such questions to the jury panel.
On appeal, Miller contends that the trial court abused its discretion by preventing him from asking questions regarding the panel's "perceived bias towards sexual offenses and crimes against children." Miller argues that it would have been proper to ask the venire members about their views regarding crimes against children because the State's expert would testify that some of Miller's victims were children, which would be expounded on by the State's experts when discussing the evidence leading to their opinions that Miller suffers from a behavioral abnormality. Miller complains that his inability to fully question the venire regarding this topic prevented him from adequately and intelligently exercising peremptory strikes and challenges for cause, prevented him from receiving a fair trial, and denied his right to effective assistance of counsel.
The State contends that Miller failed to preserve error by waiting until after voir dire to present his proposed questions to the trial court, neglecting to ask the trial court to reopen voir dire, and failing to object to the jury as seated. To preserve error, Miller was required to ask a specific and proper question, state the basis on which he sought to ask the question, and obtain an adverse ruling from the trial court. Hill, 334 S.W.3d at 229. Voir dire objections must be timely. Solomon v. Steitler, 312 S.W.3d 46, 58 (Tex. App.—Texarkana 2010, no pet.). A complaint is timely when "interposed at a point in the proceedings which gives the trial court the opportunity to cure any alleged error." Id. In this case, Miller presented his proposed line of questioning to the trial court at the conclusion of voir dire, but before the jury had been selected and seated. He presented his complaint at a time when the trial court had an opportunity to cure any alleged error regarding the voir dire proceedings. See id.
In Hill, during voir dire, Hill asked potential jurors whether they could be fair to a person they believed to be a homosexual. Hill, 334 S.W.3d at 228. Several panel members said they would not be able to give a fair trial to such a person. Id. The trial court instructed Hill to terminate this line of questioning. Id. When Hill later attempted to raise the issue, the trial court instructed him not to ask a direct question about Hill's homosexuality and stated that further questions must be submitted in advance. Id. The Texas Supreme Court held that Hill's sexual history was part of the State's proof of his alleged behavioral abnormality and that the trial court refused questioning that went to the potential jurors' ability to give Hill a fair trial, which prevented Hill from discovering the potential jurors' biases so as to strike them for cause or intelligently use peremptory challenges. Id. at 229. According to the Court, the potential jurors' candid admissions of bias, before the trial court suspended that line of questioning, established the propriety of Hill's question and the trial court's abuse of discretion in denying Hill the right to ask it. Id.
In reliance on Hill, we recently held that the trial court, in an SVP case, abused its discretion by refusing to allow the respondent to ask the following question during voir dire: "Would anybody on the first row find it hard to give someone who has been diagnosed by an expert as a pedophile a fair trial?" In re Commitment of Kalati, No. 09-11-00285-CV, 2012 Tex. App. LEXIS 3470, at **13, 16 (Tex. App.—Beaumont May 3, 2012, pet. filed) (not yet released for publication). We explained that Kalati's sexual history was part of the State's proof that he has a behavioral abnormality and that Kalati's proposed question went solely to the potential jurors' ability to give him a fair trial. Id. at **15-16. Kalati's question was probative of the potential jurors' prejudices towards persons diagnosed with pedophilia and did not ask the members of the venire for their opinions about the strength of the evidence or suggest what weight they would give to the evidence of Kalati's psychiatric diagnosis. Id. at *16.
The State requests that we delay our opinion in this case until the Texas Supreme Court renders a decision in Kalati. We decline to do so.
In this case, the jury panel was aware of the nature of the case and panel members had expressed an inability to remain impartial in cases involving children. In light of the panel members' admissions, Miller sought to pursue a line of questioning that would enable him to discover potential biases. Miller sought to question the panel members in a manner probative of their prejudices towards pedophiles, and did not seek their opinions regarding the strength of the evidence or suggest what weight should be given to any evidence of pedophilia. See id. Miller asked a specific and proper question, stated the basis on which he sought to ask the question, and obtained an adverse ruling from the trial court, which is all he was required to do. See Hill, 334 S.W.3d at 229.
The State, however, contends that the record in this case does not establish reversible error because the potential jurors who made the admissions regarding cases involving children were struck for cause. The Texas Supreme Court has held that a trial court's refusal to allow proper questions during voir dire denies a party's constitutional right to trial by a fair and impartial jury and is harmful, i.e., probably caused the rendition of an improper judgment. Babcock v. Nw. Mem'l Hosp., 767 S.W.2d 705, 709 (Tex. 1989); see Tex. R. App. P. 44.1(a)(1); see also Kalati, 2012 Tex. App. LEXIS 3470, at *17. Accordingly, under the circumstances of this case, we conclude that the trial court abused its discretion by refusing questioning that went to the potential juror's ability to give Miller a fair trial. See Hill, 334 S.W.3d at 229. We sustain Miller's sole issue and reverse and remand the case for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
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STEVE McKEITHEN
Chief Justice
Before McKeithen, C.J., Gaultney and Kreger, JJ.
DISSENTING OPINION
During voir dire, some members of the venire expressed reservations about serving as a juror "if a child was involved." The following occurred:
PROSPECTIVE JUROR [ ]: I'm letting you know I would have a hard time if a child was involved.
THE COURT: What's your number?
PROSPECTIVE JUROR [ ]: 40.
THE COURT: Thank you.
[MILLER'S COUNSEL]: Thank you. No one else? Anyone else? 64?
PROSPECTIVE JUROR [ ]: Same thing.
[MILLER'S COUNSEL]: 10?
THE COURT: We have got 10 down.
PROSPECTIVE JUROR [ ]: So I can't say anything else?
THE COURT: No. We're done with you.
[MILLER'S COUNSEL]: Juror 62?
THE COURT: Wait. Listen to me, people. We can't talk about the facts of the case. Okay? We can't go on if this case involves a dog. I'm a big dog fan. We can't talk about that.
[MILLER'S COUNSEL]: That's all I have. Thank you. I'm finished, Your Honor.
At the conclusion of the voir dire, after the questioning was "finished," the court recessed the proceeding to discuss with the attorneys the venire members to be struck for cause. Many panel members were struck, including everyone who had expressed reservations about serving as a juror on a case involving children. The judge asked the attorneys, "[I]s there a question that we need to put out to these venire panels: Can you be fair if this case involves a child? Is that something you guys want to be asking?" In the discussion that followed, the judge asked for proposed questions, and invited discussion concerning the Supreme Court's decision in Hill. See In re Commitment of Hill, 334 S.W.3d 226 (Tex. 2011). The trial judge ultimately decided not to ask the potential jurors the specific question proposed by appellant. The trial court has discretion in controlling the scope of voir dire. See Babcock v. Nw. Mem'l Hosp., 767 S.W.2d 705, 709 (Tex. 1989). Reopening voir dire also rests within the sound judicial discretion of the trial court. Tex. Emp'rs Ins. Ass'n. v. Beattie, 733 S.W.2d 700, 702 (Tex. App.—San Antonio 1987, writ ref. n.r.e.). After an attorney informs the court that she has finished her questioning, ordinarily the trial court is not required to allow a supplemental examination.
Even if the question had been posed before the attorney announced she was finished, the trial court had some discretion to disallow questions about the weight a juror would give to a particular fact. See Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 749-58 (Tex. 2006); see generally Cortez ex rel. Estate of Puentes v. HCCI-San Antonio, Inc., 159 S.W.3d 87, 94 (Tex. 2005). This is a civil case. Contrary to some discussion in the record, the Code of Criminal Procedure does not apply here. See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 & Supp. 2011). In civil cases, the anticipated evidence is sometimes mentioned in voir dire. See Vasquez, 189 S.W.3d at 753 ("Statements during voir dire are not evidence, but given its broad scope in Texas civil cases, it is not unusual for jurors to hear the salient facts of the case during the voir dire."). The Supreme Court has made clear that "broad latitude should be allowed to a litigant during voir dire examination." Babock, 767 S.W.2d at 709. The trial judge should conduct the trial in a way that promotes confidence in the court's impartiality and that of the jury selected, and should allow counsel "broad latitude" during voir dire examination. But an appellate court should not require another trial every time a trial court errs in the performance of its trial management duties.
The judgment should not be reversed absent an error that probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1. Other than those persons who were identified and struck for cause, the record does not reflect anyone else responded to the questions "No one else? Anyone else?" Under the circumstances here, another trial is unnecessary. See Tex. R. App. P. 44.1. I respectfully dissent.
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DAVID GAULTNEY
Justice