NO. 07-10-0139-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MAY 19, 2011

______________________________

JOSEPH MICHAEL ANDERSON, APPELLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 19TH DISTRICT COURT OF McLENNAN COUNTY;

NO. 2009-1366-C1; HONORABLE RALPH T. STROTHER, JUDGE

_______________________________ Before CAMPBELL and HANCOCK and PIRTLE, JJ.

OPINION

Following a plea of not guilty, Appellant, Joseph Michael Anderson, was convicted of driving while intoxicated, enhanced,1 and sentenced to thirty years confinement.2 By a single issue, he maintains the trial court abused its discretion by Defense counsel objected on the grounds that he would be unable to intelligently use his challenges for cause and his representation during voir dire would be rendered ineffective. Defense counsel raised the issue again several times during voir dire and his objections to the trial court's limitation were overruled.

By his sole issue, Appellant maintains the trial court abused its discretion in forbidding defense counsel from comparing the burden of proof required in a civil case with that of a criminal case during voir dire. We disagree.

Standard of Review

We review a trial court's limitation on voir dire for abuse of discretion. See Sells v. State, 121 S.W.3d 748, 755 (Tex.Crim.App. 2003), cert. denied, 540 U.S. 986, 157, 124 S.Ct. 511, L.Ed.2d 378 (2003). See also Rogers v. State, 44 S.W.3d 244, 248 (Tex.App.--Waco 2001, no pet.). A trial court has broad discretion over the jury selection process and it may impose reasonable limits on it. Woods v. State, 152 S.W.3d 105, 108 (Tex.Crim.App. 2004). A trial court abuses its discretion only when a proper question about a legitimate area of inquiry is prohibited. Id. A question is proper if it seeks to discover a juror's views on an issue applicable to the case. Id. (Emphasis added). The State's burden of proof of beyond a reasonable doubt is a proper question for purposes of voir dire examination. Wooldridge v. State, 827 S.W.2d 900, 906 (Tex.Crim.App. 1992). The State's burden of proof is an issue applicable to any criminal case because the fact-finder must apply that standard when determining guilt. Id. at

Analysis

Section 62.0132 of the Texas Government Code requires prospective jurors to complete a questionnaire included with a jury summons. Tex. Gov't Code Ann. § 61.0132 (West 2005). Appellant provided a copy of the McLennan County Jury Summons as an appendix to his brief. The questionnaire asks:

Have you ever served on a civil jury?

Have you ever served on a criminal jury?

Relying on these questions, Appellant argues that defense counsel should have been allowed to voir dire the jury panel on the differences between the civil burdens of proof and the criminal burden of proof. The questionnaire, however, was not made a part of the appellate record and thus, we will not consider it in our analysis. See Booth v. State, 499 S.W.2d 129, 135 (Tex.Crim.App. 1973). See also Gabriel v. State, 973 S.W.2d 715, 719 (Tex.App.--Waco 1998, no pet.).

The line of cases relied on by Appellant stand for the proposition that questions during voir dire concerning the State's burden of proof of beyond a reasonable doubt relate to an issue in a criminal case and are therefore proper. See Wooldridge, 827 S.W.2d at 904; Henson v. State, 173 S.W.3d 92, 97-98 (Tex.App.--Tyler 2005, pet. ref'd). However, those cases do not support Appellant’s argument as they do not hold that a trial court errs if it does not allow questions during voir dire related to the civil standards of proof.

Appellant has not cited us to any authority, and we have found none, where prohibiting the comparison of the civil and criminal burdens of proof during voir dire in a criminal case is a per se abuse of discretion. While questions concerning other burdens of proof may not have been impermissible, because a trial court has the ability to impose reasonable limits on voir dire, we cannot say that the trial court acted unreasonably in this case by limiting voir dire to the burden of proof actually before that jury. Consequently, we hold the trial court did not abuse its discretion in denying defense counsel's request to ask questions during voir dire about the different civil standards of proof while questioning the venire panel in a criminal case. Appellant's sole issue is overruled.

Conclusion

Having overruled Appellant's only issue, the trial court's judgment is affirmed.

Patrick A. Pirtle Justice

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