Osorio v. State

994 S.W.2d 249, 1999 WL 298278
CourtCourt of Appeals of Texas
DecidedJuly 1, 1999
Docket14-97-01366-CR
StatusPublished
Cited by36 cases

This text of 994 S.W.2d 249 (Osorio v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Osorio v. State, 994 S.W.2d 249, 1999 WL 298278 (Tex. Ct. App. 1999).

Opinions

MAJORITY OPINION

MAURICE E. AMIDEI, Justice.

Aymer Osorio appeals his conviction by a jury for possession of more than 200 but less than 400 grams of cocaine. Tex. Health & Safety Code Ann. § 481.115(e) (Vernon 1992 & Supp.1999). The jury as[251]*251sessed his punishment at 40 years imprisonment and a $50,000.00 fíne. In two points of error, appellant contends: (1) the trial court erred in sustaining the State’s objection to appellant’s voir dire questions concerning bias towards Colombians and cocaine; and (2) appellant received ineffective assistance of counsel. We affirm.

On May 18, 1997, Officer Rudolph Gomez (Gomez) was investigating a tip that a person named Led Serrano would be traveling to New York. Appellant arrived at the railroad station in a Ford Thunderbird driven by an unknown man. Appellant bought a ticket, and told the agent he would let him know later about any baggage. Appellant and the other man sat on a baggage cart outside the station, and around 12:45 p.m. the unknown driver moved the Thunderbird to the front of the station. Appellant removed a large black duffel bag from the trunk, rolled it to the baggage area, and the unknown male drove away in the Thunderbird. Gomez approached appellant, asked where he was going, and appellant told him, “New York.” Appellant told Gomez he had been visiting in Houston for two days. Gomez examined his train ticket which was issued to “Led Serrano.” Appellant displayed his New Jersey driver’s license to Gomez which was issued to “Fred Serrano.” Gomez identified himself as a narcotics officer, and asked appellant for permission to inspect his luggage. Appellant consented to the search, and Gomez subsequently found seven bundles of cocaine wrapped in a comforter in the large duffel bag. The laboratory tests revealed the packages were 72.8% pure cocaine, weighing a total of 7.2 kilograms.

In point of error one, appellant contends the trial court erred by limiting his jury voir dire regarding the jurors’ opinions of Colombians charged with drug offenses. The objectionable voir dire and verbal exchange that followed was, in pertinent part:

[APPELLANT’S COUNSEL]: Does the idea that he comes from Colombia, that he’s charged with cocaine, does that make you think in any way, “Well, Colombians and cocaine, he probably did it,” on the first row?
STATE: First of all, I am going to object to him getting into any fact relevant to this case and then trying to commit these people to some kind of opinion based upon the fact he’s trying to inject into this—
[APPELLANT’S COUNSEL]: I can rephrase the question, Your Honor.
THE COURT: The Court is going to sustain it. You may rephrase it.

Instead of rephrasing the question, appellant continued his von- dire using different topics to determine bias or prejudice.

Appellant argues that his right to voir dire was improperly restricted because he was not allowed to test the jury’s bias toward Colombians and cocaine. The State contends appellant has waived his complaint because the trial court did not absolutely limit the underlying substance of appellant’s voir dire question, but only ordered him to rephrase an improperly phrased query. We agree with the State.

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. Nunfio v. State, 808 S.W.2d 482, 484 (Tex.Crim.App.1991); Contreras v. State, 915 S.W.2d 510, 515 (Tex.App.—El Paso 1995, pet. ref'd). In determining whether the trial court abused its discretion, reviewing courts look to the propriety of the question which the defendant sought to ask. Nunfio, 808 S.W.2d at 484; Contreras, 915 S.W.2d at 515. Questions which probe into bias and prejudice against the applicable law are permissible. Hogue v. State, 711 S.W.2d 9, 27 (Tex.Crim.App.1986); Contreras, 915 S.W.2d at 515. However, a party may not ask a veniremember to commit themselves as to how they would consider certain testimony prior to trial. Hernandez v. State, 508 S.W.2d 853, 854 (Tex.Crim.App.1974); Contreras, 915 S.W.2d at [252]*252515. A potential juror may not be asked what he or she would do at any particular stage of the trial under a given set-of facts. Allridge v. State, 762 S.W.2d 146, 163 (Tex.Crim.App.1988), cert. denied, 489 U.S. 1040, 109 S.Ct. 1176, 103 L.Ed.2d 238 (1989); Contreras, 915 S.W.2d at 515.

In the present case, the State objected to appellant’s question to the jury panel on the grounds that it was an attempt to seek commitment for a particular verdict from members of the panel. The trial court sustained the State’s objection, and told appellant he could rephrase the question. Appellant chose not to rephrase the question but moved to another topic. Therefore, the trial court did not absolutely limit the substance of appellant’s question, but only told him to rephrase the question in a proper form. See Soria v. State, 933 S.W.2d 46, 65 (Tex.Crim.App.1996), cert. denied, 520 U.S. 1253, 117 S.Ct. 2414, 138 L.Ed.2d 179 (1997) (trial court did not abuse discretion in ruling that form of appellant’s question was improper as an attempt to bind the panel members to considering a particular fact-such as youth, duress, mental or emotional pressure-as mitigating). In Howard v. State, 941 S.W.2d 102, 108 (Tex.Crim.App.1996), the court of criminal appeals stated:

Most important, where the trial court places no absolute limitation on the underlying substance of a defendant’s voir dire question, it is incumbent upon defense counsel to rephrase an improperly phrased query or else waive the voir dire restriction [citations omitted],

Howard, 941 S.W.2d at 108.

We find appellant waived his complaint of voir dire restriction by failing to rephrase his question after the trial court sustained the State’s objection to the form of his question and ordered appellant to rephrase the question. See Howard, 941 S.W.2d at 108-11. We overrule appellant’s point of error one.

In point two, appellant contends he received ineffective assistance of counsel at the guilt/innocence stage because: (1) trial counsel failed to object to the prosecutor’s questions to Officer Gomez concerning the value and packaging of Colombian cocaine when there was no evidence to show the cocaine originated in Colombia; and (2) failing to object to the prosecutor’s closing argument that appellant was bringing “illegal drugs into our country,” and drug deals take “lots of money ... to turn cocaine in Colombia into money here in the United States,” because there was no evidence that the cocaine was Colombian. The State argues there is no evidence in the record to support appellant’s claim of ineffective assistance of counsel.

The U.S. Supreme Court established a two prong test to determine whether counsel is ineffective at the ' guilVinnocence phase of a trial.

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994 S.W.2d 249, 1999 WL 298278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/osorio-v-state-texapp-1999.