NO. 07-01-0470 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L A JUNE 18, 2003

______________________________ ANDREA C. DA

VILA, APPELLANT V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 137 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2001-437665; HON ORABLEBRADL EY S. UNDER W OOD, JUDGE

_______________________________ Before JOHNSON, C.J., and REAVIS and CAMPB ELL, JJ.
MEM ORANDU M OPIN ION Appellant Andrea Davila, after entering a plea of not guilty, was convicted by a j ury of the offense of r

obbery. Aft er finding an enhancem ent para graph tobe true, the j ury assessed punishm ent at 2 5 yearsof con finem ent at t he Te xas Departm ent of Crim inal Justice Institutional Division. Appellant appeals her conviction, ass ert in g two points of
er ro r. W e a ff i rm.2

Appellant first asserts that the trial court, over ap pell ant’s objection, allowed t he prosecutor

to ask questions d uring vo ir d ire that attem pted to obtain an im proper com mitm entfrom the jury panel. Appellant’s second point contends that the prosecutor im per m iss ibly

prejudice d the jury by referring to extraneous offenses, not in the record, dur ing c losin g ar

gum ents of

thepun ishm ent

pha se of th e tr ial. Testimony

attria l esta bli shed th at appe ll ant ent ered a retai l bus ines s. An em ployee of the store saw

appellant pick up an angel figurine an d put i t into her purse. When confronted, app ellan t se t th e fig urin e down in another part of the store. Appellant was asked to rem ain at the store until the police arrived. Appellant refused, and as she exited the store, swung her purse a t the employee, striki ng her in th e face, causing an injury.
In app ella nt’ s first issue she asserts t hat the prosecutor, through voir dire, attempted to obtain an improper com mitm ent from panel mem bers, through the use of hypothetical sets of facts. A ppellant’s trial counsel timely objected an d, with one ex ception, the objections w

ere overruled. Appellant argues the trial court abused its discretion whe n it overrul ed the objections to these questions. During voir dire, the prosecutor recited to the panel the stat utory definition of the phrase “In the course of comm itting theft,” as an elem entof the offense of robbery. That defi nition reads, “‘In the cou rse of com mitting theft’ means conduct that occ ur s in a n attem ptto com mit, during the com mission, or in im mediate f lig ht after the attem pt or
com mission of theft.” Texas Penal Code Ann. § 29.01(1) (Vernon 2003). He proceeded to3

question individuals i n the pane l about thei r understandi ng of the phrase. In th e first exchange t hat is at issue, the prosecutor as ked:
No w, let me as k, based on this definition, conduct that occ urs in an attem pt to com mit, during the com mission, or in the im mediate flight after the attempt or com mission of a th eft, m ust the theft be successful? M ust they get away with the property? Appella nt’s couns el objecte d to this question. His obj ection was overruled. The questioning continued: So, your answ

er is no, you do not have to have a com pleted theft?
A. No. That’s correct.
Q. And the reason that i s true is becau se the conduct that occurs is i n a n a tt emp t t o c ommi t, dur ing the com mission, or in the imm ediate flight after the attem pt or com mission of a th eft. Appellant’s counsel renewe d his objection tothe line of questioning. The objection w as overruled. A short tim e later the prosecutor asked th is question: Okay. Does anyone disagree with him ? Okay. Now , let’s give a case w here, let’ s s ay. ..w

ell, let me give you this example. Let’s say I steal property, but then I leave, and as I’m leaving, I hit you. W hat do you think about that?
Atthis point the defense attorney obj ected on the basis that t he prosecutor was asking for conclusions of law fromthe jury . The trial court sustained the obj ection, and instructed the prosecutor to “m ove onto som ething else.” The prosecutor then asked:4

Q. W ill you agree with me that there are a w hole host of differentways that a robbery can occ ur? A. Yes. Q. And that aslong as it meets the elements of the offense, thatin the course of com mitting a theft o r in the imm ediate flight after the attem pt or com mission of thef

t, that that’s a robbery? Appellant ’s couns el again objected and w as overruled. Appellant asserts that these questions were im proper attem pts to obtain com mitm ents from the venire panel based on a specific set of f acts. The St atearg uestha t th e qu est ionsw ere asked o nly to determ ine if the potential jurors w ere willing to follow the law as it pertained to the case.

A trial court has wide discretion in conducting voir dire, and i ts rulings a re reviewed under an abuse of discretion standard. See Atkins v. State , 951 S.W.2d 787, 790 (Tex.Crim .App. 1997); Camacho v. St ate , 864 S.W.2d 524, 53 1 (Tex .Crim .App. 1993). The tria l cou rt h as d isc ret ion in determ ining if a s pec ific

que stio n as ked dur ing voir direis proper and its dec ision w ill not be distur bed absent an abuse of discretion, Camacho, 864 S.W.2d at 531, but

the court must

not exceed its discretion by denying a proper question or allowing an improper question. Atki ns, 951 S.W.2d at 790.
Under the definition adopted by the Court o f Criminal Appeals, a com mitm ent question is one that com mits a pros pective juror to res olve, or to refrain from res olving, an issue a certain way after learning a particular fact. See Standefer v. State , 59 S.W.3d 177, 179 (Tex.Crim .App. 2001). St ate d an oth er w ay, a qu est ion is

a c om m itm ent

que stio n if1 The “su ccess” of the theft wasa potential issue in the case, since the testim ony

would indicate that appellant did not rem ove the figurine from the store. 5 one or m ore of

the pos sible answ

ers is t hat

thepro spe ctive j uro r would res olveor r efr ain from resolving an issue in the case on the basis of one o r more facts containe d in t he question. Id . at180. Hypothetical questions m ay be asked during voir dire to determ ine the views of pros pective jurors and help explain the law , b ut a c omm itm ent que stio n is improper unle ss thefac

ts i nclu ded in t he h ypo the tica l arelim it ed to those necessary to establ is h whether th e prospective j uror is subject to challenge for cause. Id . at 182. A venire me mber m ay be challenged for cause if he possesses a bias ag ainst a phase of the law upon which th e St at e o r t he de fe nd an t i s en ti tl ed to re ly . T ex. Code Crim . Proc. Ann

. art. 35. 16(b)(3) &

(c)(2) (Vernon S upp. 200 3). Appella nt’s counsel objec ted to four questions posed by the prosecut or. The fir st of the four

questions, i n which the prosecutor inqui red of the prospe ctive jurors w hether the phrase “i n the course of c omm ittin g theft” requi res that the theft be successful, i s a com mitm entquestion . It hy pothetically asks the pros pective j urors w het her the y w ould find that an act was com mitted “in the cours e of com mitting theft” on the basis of w hether the the ft w as s uccessful, i.e. , (in the prosecutor’s w ords) the actor did not

get away

with the property. 1 It is not, though, an improper comm itment question. An act ma y be com mitted “in the course of com mitt ing theft” even though the thef t was not successful. Garza v. State , 937 S.W.2d 569, 57 0-71 (Te x.App.–San Antonio 1996, writ ref ’d). A prospective juror who w ould require the State to show that the theft w

as successful in order to make the finding would be subject to challeng e for cause, sin ce that ju ror would require the State2 Such a prospective juror w ould thus be objectionable under article 35.16(b)(3) of the Code of Criminal Pro cedure, unl ike the prospective ju ror in Castillo , who th e Court of Criminal Ap pea ls f

oun d no t tobe s ubj ect to c hall en ge f

or caus e sim ply b eca useof h is understanding of the nature of proof be yond a reasonable doubt. Castillo , 913 S.W.2d at 535.
3 Appellant argues also that the fourth que stion was prem ised on th e third question, containing the factual situation he had bee n ins tru cte d by thecou rt to avoid, and tha t in com bination the questions result in an improper attem pt to com mit the pan el. W e do not agree with appellant’s reading of the record. As we read th e record, the prem ise of the prosecutor’s fourth question to which app ellan t ob j ected w as t he q ues tion tha t im m edia tely preceded it, in which the pro sec uto r as ked “Will you agr ee w ith m e th at t her

e ar e a whole host of different ways that a robbery can occur?” 6 to prove a fact that the statute ex pres sly does not r equire. See Casti llo v. St ate , 913 S.W.2d 529 (Tex.Crim .App. 1995); White v. State , 779 S.W.2d 809 (Tex.Crim.A pp. 1989) (prospec tive j uror Sim m ons). 2 The first question, therefore, doesnot con tain mo re facts than necessary to establish whether the venire mem ber was s ubject to challenge for cause. It w

as not an abuse of t he trial court’s discretion to perm it the question.
The second and fou rth que stio ns to w hich app ellan t ob j ected contain no facts at all, but simp ly restate elements of the defini tion of the ph rase “in th e course of com mitting theft” from the Penal Co de. Those questi ons therefore were not comm itment questions. Th e t ri al co ur t d i d n ot ab us e i ts di sc re ti on i n o ve rr ul i ng ap pe l l an t’ s o bj ec ti on s t o t he m. 3 Appella nt’s objection to t he prosecutor’s third question w a s sustained, and appellant requested no further relief from the trial court. No com plaint is presented for our
re vi ew, th erefore, with respect to that obj ection. Tex.R.A pp.Proc. 33.1; See Tucker v. State , 990 S. W .2d 261, 262 (Tex .Crim .App. 1999); Dix on v. State , 2 S.W.3d 263, 265 (Tex.Crim .App. 1998) (preservati on of error re quires ad verse ruling fromthe trial co urt);7

Schumacher

v. State , 72 S.W.3d 43, 47 (Tex.App. –Texarkana 2001, pet. ref’d) (applying ruleto com ment

during voir di re) . Further, it is a prerequisite to appellate review of the trial court’s rulin g on an obj ection, that the issue raised on appeal correspond to the objection ma de at trial. See D ix on , 2 S.W.3d at 265. Appellant’s objec tion to the prosecutor’s third question was that it asked for “conclusions of law from the jury .” That objection w ould not

pre ser ve f or a ppe llaterev ie wa com plaint that the question is an improper com mitm ent question.
In sum mary , we find that the questions as to w hich appellant has preserved her
com plaints of

err or d id no t im pro per ly at tem pt to co m m itthe jury panel to the resolution of issues bas ed o n pa rtic ular fac ts, but w ere per m is sible att empts to exp lain the law and determ ine thepro spe ctive j uro rs’ abili ty to follow it. See Standefer , 59 S.W.3d at 182; Atki ns , 951 S.W.2d at 789. Appellant’s first point of error is overruled.
In her second point of

error, appellant complains that thepro sec uto r im per m iss ibly prejudiced the jury

by referring to an ext raneous offense, not in the record, d uring closing argument

s of the punishm ent phase of the trial. During the punishm ent phase, th e prosecutor entered appellant’s “pen packet” into evidence, without obj ection by the defense. In closing argum ent to the jury, t he prosecutor referred to two offenses of theft com mitted by appellant in Novem ber of 19 96 and J anuary of 1997. T hese of

fenseswer

e listed in a Motion to Revoke Proba tion contained in the pen packet. Appellant’s counsel obj ected to the ref ere nceto t hes e tw

o of fen ses , on thebas is8

thatthey were not part of the record. Appellant asked for a j ury instruction to disregard the prosecutor’s statem ent. The court sustained the obj ection, and instructed the j ury notto refer to that inform ation. Appellant did not ask for a m istrial.

W ith its appellee’s brief, the State has subm itted an agreem ent between the parties pursuant to Rule 34. 6(e) of the Rules of Appellate Procedure. The S tate and appellant have, by

agreem ent, corrected an inaccur acy in t he r epo rte r’srecord of t he t rial. The agre em ent

is to t he e ffe ct t hat

theoff ens es to w hich thepro sec uto r re fer red in hi s argument

were in evidence at t he time of the prosecutor’s argum ent and we re not then outside the record. The agreem ent further states tha t, after the State’s argum ent on punishment, the exhibit containing that informa tion was redacted by the trial court in a way that deleted the references to t he offenses.
Based on the agreem ent, we find no impropriety in the prosecu tor’s argum ent. The State fur the r po intsout

tha t even if

the prosecutor’s argum ent was improper, nocom plaint of error concerning it was preserved at trial for appellate review. To pr eserve e rror, a spe cifi cobjection m ust be pressed tothe point of obtaining an adverse ruling, whether that is to an ob

jec tion, a req uest th at the j urybe instruc ted to d isregard t he evidence, or a mot ion for

mistrial. See Tucker

, 990 S.W.2d at 262; Hernandez v. State , 914 S.W.2d 226, 230 (Tex.App. –W aco 1996, no pet.). H ere, the trial court sustained appellant’s objec tion to the argum ent and instructed the j ury accordingly. Appe llant’s br ief argues that the4 The case cited by appellant, Melton v. Stat e , 713 S.W.2 d 107 (Te x.Crim .App. 1986), illustrates the proper procedure. Ther e, the d efendant’s counsel obj ected to the prosecutor’s closing argument. The trial court sustained the obj ection an d ordered the j ury to disregard the pros ecutor’ s statem ent. Th e defenda nt’s counsel th en m oved fo r a mistrial, which w

as denied. Id . at 114. 9 evidence of these tw

o extraneousoffenses w as so prej udicial that even the instruction to disregard cou ld no t re m ovethe ir pr ej udic ial e f

fect. If so, preservation of the error for appellate review required that the trial court be given theopportunity to cure the error via
a m otio n fo r m istr ial. 4 In the absence of t he denial of such a m otion, appellant cannot here com plain of the alleged error. See Cockrell v. Stat e , 93 3 S.W.2d 73, 89 (Tex.Crim .App. 1996). A ppellant’s second point of error is overruled. Having ove rr ul ed ap pe ll an t’s po in ts of er ro r, we affirm the judgm ent of the trial court.
Jam es T . C am pbe ll Justice

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