Opinion filed May 16, 2013

In The

Eleventh Court of Appeals __________

Nos. 11-11-00144-CR & 11-11-00145-CR

_________

JUAN TREVIZO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 244th District Court

Ector County, Texas

Trial Court Cause Nos. C-37,760 & C-37,761

M E M O R A N D U M O P I N I O N

Juan Trevizo pleaded guilty to three counts of aggravated sexual assault of a 

child, Camila Doe, in Cause No. 11-11-00144-CR and pleaded guilty to one count 

of indecency with a child, Kathy Doe, in Cause No. 11-11-00145-CR.

1

 The cases 

were tried together by agreement. The jury found Trevizo guilty on all four counts 

and assessed his punishment for each count of aggravated sexual assault at 

 1

We refer to each child victim by a pseudonym.
2

confinement for fifty-five years and assessed his punishment for indecency with a 

child at confinement for twenty years. The trial court sentenced him accordingly 

and ordered his sentences on the three aggravated-sexual-assault charges to run 

concurrently and his sentence on the indecency-with-a-child charge to run 

consecutively. We affirm.

In a single issue, Trevizo argues that the trial court erred when it prohibited 

him from asking the prospective jurors whether, based on a finding of guilt,

“they’ve formed an opinion that he should go to prison.” He contends that his 

question was not an improper commitment question and that the question was 

relevant to the issue of punishment. Specifically, he argues that the question 

addressed whether the prospective jurors could consider the full range of 

punishment. He also argues that the error affected his substantial rights.

During voir dire, defense counsel told the prospective jurors that Trevizo 

had pleaded guilty to the charges and that the jury would only be responsible for 

determining punishment. Defense counsel told the prospective jurors that he 

wanted to know if any of them had formed the opinion that they would send 

Trevizo to prison. The prosecutor objected and argued that defense counsel’s 

question, as phrased, was an improper commitment question because counsel was 

pointing to Trevizo and asking about Trevizo specifically. Defense counsel 

responded that he needed to know if the prospective jurors had formed an opinion 

that Trevizo should go to prison. The trial court found that the question was not 

appropriate and explained that defense counsel could ask whether the prospective 

jurors could consider the full range of punishment, including probation, but could 

not ask a commitment question as to the particular defendant. The trial court did 

not permit defense counsel to ask, “Have you formed an opinion that he should go 

to prison?” However, defense counsel was permitted to ask whether the 

prospective jurors could consider the full range of punishment, including 
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probation, and counsel used the majority of his time during voir dire to question 

the prospective jurors on the issue of probation.

To determine whether a voir dire question is an improper commitment

question, we must first determine whether the particular question is a commitment 

question and, if so, then determine whether the commitment question is proper. 

Standefer v. State, 59 S.W.3d 177, 179–83 (Tex. Crim. App. 2001). A 

commitment question is one that commits “a prospective juror to resolve, or to 

refrain from resolving, an issue a certain way after learning a particular fact.” Id.

at 179. A commitment question is proper if it gives rise to a valid challenge for 

cause and includes only those facts necessary to establish the challenge for cause. 

Id. at 182.

The question at issue here was a commitment question because it sought to 

elicit a commitment from a potential juror as to whether the potential juror had 

already decided to send the defendant, who had pleaded guilty to aggravated sexual 

assault of a child and indecency with a child, to prison. The question was also 

improper because defense counsel was pointing to Trevizo and asking specifically 

about whether the potential jurors had decided to send him to prison. While it is 

proper for counsel to ask potential jurors whether they could consider the full range 

of punishment for the offense of aggravated sexual assault, it is not proper for 

defense counsel to ask potential jurors how they would punish counsel’s client

specifically. See id. at 181 (questions concerning whether a juror can consider the 

full range of punishment for a particular offense are proper commitment 

questions); Moreno v. State, No. 05-09-00583-CR, 2010 WL 2674657, at *3 (Tex. 

App.—Dallas July 6, 2010, pet. ref’d) (not designated for publication) (holding 

question of whether prospective jurors could consider probation specifically for 

Moreno was improper commitment question). When the question asks the 

potential jurors to take the particular defendant into consideration when deciding 
4

whether they could consider the full range of punishment, the question includes 

more facts than necessary to establish a challenge for cause. See Lewis v. State,

No. 05-98-02116-CR, 2000 WL 772936, at *3–4 (Tex. App.—Dallas June 15, 

2000, pet. ref’d) (op. on orig. subm., not designated for publication) (holding that 

the trial court did not err in overruling defendant’s challenges for cause where

prospective jurors’ responses that they could not consider probation for Lewis did 

not indicate that they could not consider the full range of punishment for the 

offense, but only indicated that they would consider the facts of the commission of 

the offense in determining the appropriate punishment). Therefore, the trial court 

did not err when it prohibited Trevizo’s defense counsel from asking the 

prospective jurors whether they had already decided to send Trevizo to prison.

Even if the trial court erred, the error did not affect Trevizo’s substantial 

rights because his defense counsel was permitted to question the prospective jurors 

at length regarding whether they could consider the full range of punishment. See 

Woods v. State, 152 S.W.3d 105, 109–10 (Tex. Crim. App. 2004) (trial court’s

denial of a proper question did not have a substantial or injurious effect or 

influence in determining the jury’s verdict because defense counsel was able to ask 

the prospective jurors essentially the same question). In addition, after defense 

counsel questioned the prospective jurors on whether they could consider the full 

range of punishment, he challenged thirty-three jurors for cause and the trial court 

granted each challenge. We overrule Trevizo’s sole issue. 2

 2

Although Trevizo argues that the proper harm analysis is whether the error affected his 

substantial rights, we note that the proper harm analysis is a constitutional harm analysis under TEX. R.

APP. P. 44.2(a). Jones v. State, 223 S.W.3d 379, 380–83 (Tex. Crim. App. 2007). Because defense 

counsel was able to question the potential jurors on whether they could consider the full range of 

punishment and because defense counsel was granted each challenge for cause that he requested, we find, 

beyond a reasonable doubt, that the error did not contribute to Trevizo’s punishment.
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We affirm the judgments of the trial court.

JIM R. WRIGHT

CHIEF JUSTICE

May 16, 2013

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Willson, J.