Abron v. State

523 S.W.2d 405, 1975 Tex. Crim. App. LEXIS 930
CourtCourt of Criminal Appeals of Texas
DecidedApril 23, 1975
Docket49698
StatusPublished
Cited by98 cases

This text of 523 S.W.2d 405 (Abron v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Abron v. State, 523 S.W.2d 405, 1975 Tex. Crim. App. LEXIS 930 (Tex. 1975).

Opinions

OPINION

ODOM, Judge.

Appellant was convicted for the offense of rape; punishment, death, commuted to life imprisonment.

In his first ground of error, appellant contends the trial court erred in refusing to permit him to ask prospective jurors certain questions regarding the existence of racial prejudice. The appellant was black and the victim was white. Appellant asserts he was injured as a consequence of [407]*407such refusal because he could not intelligently exercise his peremptory challenges.1

The voir dire of the jury panel is before us for review. The record shows that appellant was permitted to ask general questions of the jury panel such as whether they would be influenced by the fact that appellant was black, but he was not permitted to question the veniremen regarding possible race prejudice. Then, counsel for the appellant tendered to the court several questions that he wanted to ask each prospective juror. Among those questions were the following:

“ . . . would the fact then that this defendant is a Negro and the complaining witness a white woman, if this is the situation, cause you to have a bias or prejudice against the defendant? Would this bias or prejudice affect your fair and impartial consideration of the evidence in determining whether or not the State has proven the defendant guilty beyond a reasonable doubt? Would this bias or prejudice affect your fair and impartial consideration in determining what the proper punishment should be in this case? Can we assume that this bias or prejudice against the defendant would not be present if the evidence were that the complaining witness was another Negro, or that the defendant was a white person? . . . ”

After a discussion of what type questions would be permitted, appellant’s counsel requested the court to clarify whether he could inquire into:

“Whether or not there would be a difference in their mind in either the guilt or innocence or punishment, the fact that he’s a Negro and she’s white?”

to which the court responded:

“That’s specifically what I don’t want you to ask. . . . ”

The State argues that the general questions permitted by the trial court regarding race prejudice constituted a sufficient inquiry into the matter, fully complying with Alderidge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931) and Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973). Both Al-deridge and Ham were reversed for failure of the trial court to ask prospective jurors questions requested by defense counsel regarding race prejudice.

The cases of Alderidge and Ham were decided in the context of a jury selection procedure in which it was the duty of the judge to ask questions of the potential jurors. The issue in both cases was whether the judge’s refusal to ask questions requested by counsel for the defendant violated the due process clause of the Fourteenth Amendment. In Texas, both counsel for the defendant and for the State are entitled to directly question the jury on voir dire. Plair v. State, 102 Tex.Cr.R. 628, 279 S.W. 267. This procedural difference is the consequence of the defendant’s right to counsel guaranteed by Article 1, Section 10 of the Bill of Rights to the Texas Constitution, Vernon’s Ann. St. E. g., Burkett v. State, Tex.Cr.App., 516 S.W.2d 147; De La Rosa v. State, Tex.Cr.App., 414 S.W.2d 668; Mathis v. State, 167 Tex.Cr.R. 627, 322 S.W.2d 629. In addition, this right is afforded statutory protection under the provisions of Article 35.17, Vernon’s Ann.C.C.P.,2 which governs [408]*408the manner in which the right is to be exercised.

Questions asked of potential jurors are to enable intelligent exercise of peremptory challenges and to establish a basis for a challenge for cause. In Mathis, supra, 322 S.W.2d at page 631, this Court said:

“It has been long the holding of this court that the constitutional guarantee of the right to be represented by counsel (Bill of Rights, Art. 1, Sec. 10, Vernon’s Ann.St.Const.) carries with it the right of counsel to interrogate the members of the jury panel to the end that he may form his own conclusion, after his personal contact with the juror, as to whether in counsel’s judgment he would be acceptable to him or whether, on the other hand, he should exercise a peremptory challenge to keep him off the jury.

Applying the constitutional principles discussed in Alderidge, Ham, and the decisions of this Court, when it is contended that a question was not permitted which would have enabled the intelligent exercise of peremptory challenges, both the requirements of the Due Process Clauses of the United States Constitution and the right to counsel guaranteed by the Texas Constitution must be satisfied. Therefore, even if the State’s contention is valid that the action of the trial court complied with Alder-idge and Ham, there remains the issue of whether our constitutional and statutory standards were met.

Not every restriction of the conduct of the jury voir dire infringes upon a defendant’s right to effective assistance of counsel. This Court has consistently held that the trial court has wide discretion over the course of the voir dire of the jury panel.3 E. g., Hernandez v. State, Tex. Cr.App., 508 S.W.2d 853; 35 Tex.Jur.2d, Jury, Sec. 117. (1) Reasonable time limits may be placed on the voir dire examination. Barrett v. State, Tex.Cr.App., 516 S.W.2d 181; De La Rosa v. State, supra; Plair v. State, supra. (2) Repetitious or vexatious questioning may be prevented. Smith v. State, Tex.Cr.App., 513 S.W 2d 823; cf. Grizzell v. State, 164 Tex.Cr.R. 362, 298 S.W.2d 816. See also Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973). (3) Questions asked in an improper form may be disallowed. E. g., Hernandez v. State, supra; Hunter v. State, Tex.Cr.App., 481 S.W.2d 137. And (4) the court may restrict inquiry into the personal habits of jurors as opposed to inquiry into personal prejudices or moral beliefs. Densmore v. State, Tex.Cr.App., 519 S.W.2d 439. Furthermore, prejudice or injury must be shown to demonstrate reversible error when the right to propound questions on jury voir dire is restricted. Hernandez v. State, supra; Burkett v. State, supra.

An issue similar to the one before us was presented long ago in Fendrick v. State, 39 Tex.Cr.R. 147, 45 S.W. 589 (1898).4 There a black man had allegedly murdered a white man. The trial court allowed general questions but refused to per

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Bluebook (online)
523 S.W.2d 405, 1975 Tex. Crim. App. LEXIS 930, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abron-v-state-texcrimapp-1975.