During voir dire in an aggravated sexual assault of a child case, the defense attorney posed the following question to each venire panel member individually:
I want you to assume that you have found somebody guilty of sexual assault, aggravated sexual assault of a child. They intentionally or knowingly caused the penetration of the sexual organ of the complaining witness, of the victim, by the means of the sexual organ or any other [sic] or with a finger or with touching genital to genital…Could you 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?
Responding to that question, more than 50 of the panel members indicated that they could not consider the minimum punishment. The defense attorney did not ask any further clarification or rehabilitation questions on this subject. It is important to note, however, that prior to the defense attorney's questioning, the trial judge and the prosecutor fully explained that jurors must consider the entire range of punishment.
The defense attorney challenged all of the venire members that indicated they could not consider the minimum punishment, but the trial judge denied most of his challenges. Several of the challenged panel members were ultimately seated as members of the jury, which returned a guilty verdict and a 20-year prison sentence.
On appeal, the 2nd District Court of Appeals (Fort Worth) held that the trial judge abused his discretion in not excusing the challenged panel members. The Court of Criminal Appeals, in a unanimous opinion released this week, (Cardenas v. State) affirmed the holding of the 2nd Court. In so holding, the CCA explained:
The CCA went on to distinguish between proper and improper commitment questions, noting that:Jurors must be able to consider both a situation in which the minimum penalty would be appropriate and…a situation in which the maximum penalty would be appropriate. Therefore, both sides may questions the panel on the range of punishment and may commit jurors to consider the entire range of punishment for the statutory offense. A question committing a juror to consider the minimum punishment is both proper and permissible.
Takeaway: Nothing new here. Questions like the one asked in this case are common for defense attorneys. If a venire member cannot consider the minimum punishment, the trial court should ALWAYS exclude them from the panel. Period.A commitment question may include any or all of the statutory elements and statutory manners and means contained in the indictment, but the inclusion of evidentiary facts or non-statutory manners and means remains improper under the Standefer test. (See Standefer v. State, 59 S.W.3d 177 (Tex. Crim. App. 2001))