Jose Barbontin Salas v. State
13-15-00070-CR
| Tex. App. | Jul 14, 2015Background
- Appellant Jose Barbontin Salas was convicted of evading arrest with a vehicle and, as a habitual felony offender, received a life sentence; notice of appeal filed January 21, 2015.
- Appellant's brief raises three primary trial errors: (1) improper commitment questions during voir dire asking venire whether they could "assess/give" maximum or life sentences; (2) prosecutorial argument urging the jury to be "the conscience of the community"; (3) a prosecution witness volunteered that appellant was on parole during guilt/innocence testimony.
- Defense lodged contemporaneous objections and a running objection during voir dire; the court overruled many objections but sustained a running objection at one point and later denied mistrial motions related to voir dire and the parole statement while giving a curative instruction on the parole remark.
- Appellant argues the voir dire questions improperly coerced commitments (beyond permissible ‘‘consider’’ questioning), resulting in juror strikes and a tainted panel that contributed to the life sentence.
- Appellant contends the "conscience of the community" argument improperly injected the community's desires as a fact in the case, invoking longstanding Texas authority prohibiting appeals to what ‘‘the people’’ want.
- Regarding the parole comment, appellant argues the unsolicited statement was inadmissible extraneous bad-act-type evidence (Tex. R. Evid. 404(b)) and could not be cured by instruction given the severity of the sentence.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Salas) | Held |
|---|---|---|---|
| 1) Voir dire commitment questions | Prosecutor asked whether venire could "consider and assess" high-end punishments (including life/99) and sought jurors who could do so; contends proper to probe both consideration and assessment ability. | Salas argues repeated "assess/give" questions were improper commitment questions (Standefer) that went beyond permissible "consider" questioning, tainted the venire, and led to erroneous strikes for cause; requests reversal. | Relief sought: reversal and new trial; appellate ruling not included in brief. |
| 2) "Conscience of the community" jury argument | State contends referring to jurors as the "conscience of the community" is a common, acceptable rhetorical phrase and not an invocation that the community demands conviction or punishment. | Salas contends the argument improperly appealed to community expectation and thereby injected a fact not in evidence; authorities hold argument that "the people" want conviction or a particular punishment is reversible error. | Relief sought: reversal; appellate ruling not included in brief. |
| 3) Witness volunteered appellant was on parole | State argues the witness's statement explained motive for fleeing ("I didn't want to go back to jail") and was probative to why defendant fled. | Salas argues the parole remark was extraneous, 404(b)-type evidence improperly before the jury; curative instruction insufficient given sentence severity; requests reversal or mistrial. | Court sustained objection and instructed jury to disregard but denied mistrial; appellant preserves issue for appeal; final appellate disposition not in brief. |
Key Cases Cited
- Morgan v. Illinois, 504 U.S. 719 (Sup. Ct.) (standard on juror bias and commitment questioning)
- Wainwright v. Witt, 469 U.S. 412 (Sup. Ct.) (cause challenge standard for juror inability to follow law)
- Standefer v. State, 59 S.W.3d 177 (Tex. Crim. App. 2001) (defines and limits improper commitment questions during voir dire)
- Garcia v. State, 919 S.W.2d 370 (Tex. Crim. App. 1994) (juror inability to consider full punishment range challengeable for cause)
- Briddle v. State, 742 S.W.2d 379 (Tex. Crim. App. 1987) (voir dire on punishment scope)
- Wyle v. State, 777 S.W.2d 709 (Tex. Crim. App. 1989) (juror obligations to follow statutory punishment range)
- Cortez v. State, 683 S.W.2d 419 (Tex. Crim. App. 1984) (prosecutorial argument referencing what "the people" want is improper)
- Cox v. State, 247 S.W.2d 262 (Tex. Crim. App. 1951) (reversal for appeals to community expectation)
- Peysen v. State, 124 S.W.2d 137 (Tex. Crim. App. 1939) (improper argument about what the people expect)
- Porter v. State, 226 S.W.2d 435 (Tex. Crim. App. 1950) (similar prohibition on argument invoking community desires)
- Stine v. State, 300 S.W.3d 52 (Tex. App.—Texarkana 2009) (factors for evaluating whether jury instruction cures admission of improper parole/extraneous evidence)