NO. 07-97-0347-CR

	IN THE COURT OF APPEALS

	FOR THE SEVENTH DISTRICT OF TEXAS

	AT AMARILLO

	PANEL D

	APRIL 16, 2002

	______________________________

	RONNIE FREEMAN,

			Appellant

								v.

	THE STATE OF TEXAS, 

			Appellee

	_________________________________

	FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

	NO. 96-422758; HON. JIM BOB DARNELL, PRESIDING

	_______________________________

ON REMAND FROM COURT OF CRIMINAL APPEALS

Before BOYD, C.J., and QUINN and REAVIS, J.J.

Dissent

	I respectfully dissent and conclude that the court’s original opinion drafted by Chief Justice Boyd was and is correct.  In sum, the trial court erred in prohibiting appellant from assessing whether the potential jurors could be fair and unbiased (as required by law) irrespective of the age of the victim.  Furthermore, the recent opinion by a bare majority of the court in Standefer v. State, 59 S.W.3d 177 (Tex. Crim. App. 2001) does not persuade me otherwise.  Rather it reinforces my conclusion.  Admittedly, that writing purports to establish a bright-line rule to be applied when determining whether a question propounded to the jury venire constitutes an impermissible commitment question.  I too admit that it overruled precedent of the Court of Criminal Appeals, i.e. Maddux v. State, 862 S.W.2d 590 (Tex. Crim. App. 1993), upon which we relied in issuing our original opinion and judgment.  Yet, in remanding the cause before us “for reconsideration in light of Standefer,” the Court of Criminal Appeals did not say that our original opinion and judgment were wrong.  Nor did it purport to suggest that it believed that Standefer required a different result.1  Instead, I read it as obligating me to conclude as I do.

	In Standefer, the court did not purport to affect the need for fair and impartial juries.  Rather, it sought to further regulate the procedure utilized to assess partiality and bias.  And, in doing so, it acknowledged that not all commitment queries propounded during voir dire are impermissible.  Instead, the propriety of the question depends upon two criteria, according to the court.  The first concerns whether the question is one actually seeking some commitment from the prospective juror; that is, it must seek a commitment from the potential jurors to act in a certain manner depending upon their resolution of the factual hypotheticals contained in the question.  Standefer v. State, 59 S.W.3d at 183.  The second involves whether the inquiry includes facts other than those necessary to develop or establish a valid basis to challenge the respondent for cause.  Id.2  With this said, I turn to the circumstances at bar.

	The question appellant endeavored to ask is contained in a bill of exception developed before the trial court.  As illustrated by that bill, appellant “wished to inform the jurors that the victim . . . was a two-week old child” and “wanted to ask [them] . . . whether that fact would have any affect on their verdict, whether it be on guilt-innocence or on punishment.”  Obvious from this is appellant’s reason for asking the question.  He simply wanted to know 1) whether the jurors could remain fair and unbiased and 2) follow the law, despite the victim’s age.  It goes without saying that both the State and defendant were and are entitled to fair and impartial jurors capable of following the law and overcoming personal bias and prejudice.  See Dinkins v. State, 894 S.W.2d 330, 344-45 (Tex. Crim. App. 1995) (stating that a venireman is subject to challenge by either the State or defendant if he is unable to follow the law); Ransom v. State, 630 S.W.2d 904, 908 (Tex. App.–Amarillo 1982, pet. ref’d.) (recognizing that litigants in a criminal proceeding are guaranteed a fair and impartial jury).  And, appellant wanted to assure that the body adjudging him met that criteria.

	Next, I assume arguendo that asking veniremen whether the age of the victim could affect their decision viz-a-viz guilt or punishment is a commitment question.  Indeed, some could possibly say that it constitutes effort to “set the hypothetical parameters for [the juror’s] . . . decision making,” and, that is all the Standefer majority required to satisfy the first prong of the test.  Id. at 180.  Instead, my focus lies upon three other indicia.  They are: 1) a possible answer to the question; 2) the relationship of the answer to the respondent’s ability to legally serve on a jury; and, 3) whether the facts mentioned in the query were solely those needed to render the venireman objectionable.  As to the possible answer to the question, it is “yes.”  Next, in answering “yes,” the venireman reasonably indicates, at the very least, that the age of the victim could be influential or determinative in assessing guilt, as opposed to the evidence of guilt or the State’s satisfaction of its burden to prove guilt.  And, once the venireman so indicates, he has rendered himself subject to challenge for cause.  Again, jurors must follow the law, which law requires that they convict only if the State has presented evidence establishing, beyond reasonable doubt, each element of the crime.  See Gray v. State, 51 S.W.3d 856, 860 (Tex. App.–Texarkana 2001, pet. granted).  Factors irrelevant to guilt, such as a victim’s age, ethnicity, sex, sexual preference, religion or the like, cannot generally form the basis of a decision to convict.3  Lastly, the only fact mentioned in the question, i.e. the victim being two-weeks old, is the very fact needed to determine whether the venire member is barred from serving on the jury.  

	Thus, before us we have a situation wherein a possible answer to the question would provide basis to remove the respondent from the jury and the facts mentioned in the question do not exceed those needed to establish the grounds for challenge.  Moreover, this question differs little from one approved in Standefer that involved nuns.  There, the court found nothing wrong with asking “‘[I]f the victim is a nun, could [the prospective juror] be fair and impartial?’”  Standefer v. State, 59 S.W.3d 180.  Here, and though his question was worded differently, appellant too wanted to know if the jurors could be fair and impartial despite a characteristic of the victim, that characteristic being age.4  In sum, the question before us not only likens to one found permissible in Standefer, it falls outside the boundaries of an impermissible commitment inquiry as those boundaries are defined in that same case.   

	For these reasons, I respectfully dissent and reaffirm the conclusion and  judgment this same panel reached when the cause was originally submitted.             

									Brian Quinn

									   Justice

Publish.