Public-domain · open source
OpenJurist

568 S.W.2d 132

Florio v. State

Court of Criminal Appeals of Texas · decided 1978-07-12

Relies on Smith v. State · 167 Tex. Crim. 627 - Mathis v. State · Abron v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1978-07-12

How this case has been cited

Cited by 8 later decisions — most recently March 2018

8 state decisions

3019781980199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1' OPINION

ODOM, Judge.

¶2This is an appeal from a conviction for aggravated robbery; punishment, enhanced by one prior felony conviction, was assessed at sixty years.

¶3In his first ground of error appellant contends the trial court erroneously disallowed a question he sought to ask the jury panel during voir dire in order to exercise his peremptory challenges intelligently. The record reflects:

“MR. ROE [defense counsel]: All right, let me ask this question to the panel as a group. Now, is there any member of this panel who regardless of what the evidence showed in any case could not believe that a police officer was intentionally telling a lie from the witness stand?
“MR. MOLINA: Your Honor, we’re going to object. Their role is to test the credibility.
“THE COURT: Would you mind stating that question again?
“MR. ROE: The question is: Is there any member of this jury that regardless of the evidence showed in any case could not believe that a police officer was intentionally—
“THE COURT: I’ll sustain the objection.
“MR. ROE: —telling a lie.
“THE COURT: I won’t even consider the question. I’ll sustain the objection.
“MR. ROE: Note our exception.”

¶4In Hernandez v. State, Tex.Cr.App., 508 S.W.2d 853, a virtually identical question was disallowed by the trial court, and reversal resulted. The question there was:

“Is there any member of the panel who, regardless of what the evidence showed in any case, could not believe that a police officer was telling a willful falsehood from the witness stand?”

¶5The trial court in its discretion may place reasonable time limits on the length of voir dire examination, and within such limits the defendant may examine each prospective juror individually and pose questions about any proper area of inquiry. The right to pose such questions is part of the right to counsel under Article 1, Section 10, Texas Constitution, in order that peremptory challenges may be exercised intelligently. Emanus v. State, 526 S.W.2d 806; Abron v. State, Tex.Cr.App., 523 S.W.2d 405; Smith v. State, Tex.Cr.App., 513 S.W.2d 823; Cook v. State, Tex.Cr.App., 398 S.W.2d 284. Furthermore, denial of-a proper question cannot be harmless error:

“Appellant is entitled to knowledge of the answers, regardless of content, to ensure knowing challenges. Mathis v. State, 167 Tex.Cr.R. 627, 322 S.W.2d 629 (1959). If the question is proper, an answer denied prevents intelligent use of the peremptory challenges and harm is shown.” Smith v. State, supra. (Emphasis added.)

¶6The question here was proper, and on authority of Hernandez v. State, supra, reversible error is shown.

¶7The judgment is reversed and the cause remanded.

DOUGLAS, J.,

¶8dissents for the reasons stated in the dissenting opinion in Hernandez v. State, Tex.Cr.App., 508 S.W.2d 853, 855.

/568/sw2d/132 · .json · Public domain