OPINION
Opinion by
A jury convicted appellant Dennis Garner of continuous sexual abuse of a child younger than fourteen and assessed punishment at life imprisonment. In three issues, appellant contends the evidence is insufficient to support the conviction, the magistrate should not have been allowed to preside over jury selection, and the magistrate erred by limiting the defense’s ability to question the jury panel during voir dire. We affirm.
Background
Evidence presented at the guilt/innocence phase of the trial showed the following:
In January of 1980, appellant’s then eleven-year-old stepsister and her stepsister’s eleven-year-old friend accused appellant of molesting them. Appellant was convicted of sexual abuse of a child as a result of this incident and sentenced to two and one-half years in prison. In 1991, appellant was convicted of aggravated sexual assault of a child under the age of fourteen for molesting his biological daughter, D.M., who was bom in 1983. D.M.’s sister, Ash-leigh, was born in 1989. Ashleigh, D.M., their younger sister, Natalie, and their older brother, Dennis, were removed from appellant’s—their biological father’s— household when Ashleigh was about four years of agé. Ashleigh had no further contact with appellant until she reestablished contact with him via email when she was in her early twenties.
By the time she reconnected with appellant, Ashleigh had two children of her own: The complainant, K.B., who was born in 2008, and her brother, J.B. Ashleigh and appellant began exchanging text messages and, over time, Ashleigh established a relationship with her biological father and his wife, Pam,
K.B. and J.B. started having weekend visits with appellant and Pam at their Car-rollton home in 2014. Ashleigh estimated there were approximately ten such.visits. Ashleigh testified that Pam reassured her there was nothing to fear and that, whenever her children stayed with them, Pam would be in charge of bathing and dressing the children. Ashleigh believed Pam would be protective of her children.
At this same time, Ashleigh was having financial problems, struggling to pay $800
Ashleigh had a-job but no car, so Pam, and occasionally appellant, would pick K.B. up from school. Pam was usually at the house when K.B. got home from school but there were times, according to Ashleigh’s' testimony, when appellant and K.B. were at the house by themselves. Ashleigh- recalled appellant would play dress-up and “Barbies” with KB., and the two’ ’of them “just seémed to have a great connection.”
K.B. had received a unicorn pillow as a gift for Christmas in 2014. She kept the pillow on her bed and slept on it. J.B., meanwhile, had gone to live with his father on January 8, 2015; his departure meant’ that KB. had a room to herself.
In late January or early February 2015, Ashleigh became involved with a church in Carrollton, and she was attending various membership-related programs on Wednesday and Thursday nights. K.B. was at home with Pam and appellant when Ash-leigh was at church. KB. had just turned six years of age, and she no longer needed assistance dressing or bathing herself. But Ashleigh recalled one occasion where she opened the bathroom door to check on her daughter and found appellant sitting on the toilet facing KB., who was in the bathtub. Surprised, Ashleigh asked: “What is going on? ... There’s no need for you to be in here. She’s old enough to bathe herself.” Appellant replied, “I just wanted to the [sic] make sure that she was bathing herself correctly, that she got clean.” Ashleigh told appellant, “You don’t need to be in here,” and he left the bathroom. Later, Ashleigh asked KB., “[W]hy was Pawpaw in here giving you a bath? ... You’re old enough to do it yourself.” KB, responded, “But, Mama, he begged me. I told him:I could, but he begged me.”
There were times after this incident when appellant and Pam looked after KB. because Ashleigh was at work or attending church, but Ashleigh’s concerns did not subside. Ashleigh shared these concerns with D.M., who suggested the best thing she could do would be Ho ask [KB.] straight up.” On Friday, February 13, 2015, Ashleigh got off work early, picked KB. up from school, and then drove to D.M.’s workplace. They walked over to a nearby pond and, while they waited for D.M.’s shift to end,' Ashleigh asked K.B., “Has Pawpaw touched you?” KB. asked, “What do you mean?” Ashleigh said, “Has Pawpaw touched your privates before,” to which KB. replied, “Yes.” Ashleigh asked KB. to show her how appellant had touched her, and KB. “demonstrated it ... on the outside of her clothes down by her private area.” Ashleigh testified that she called Pam and told her what KB. had said. Pam’s response was, “Do you even believe her?”
Ashleigh and D.M. immediately, took KB, to the Carrollton Police Department, where KB. was interviewed by a detective. KB. was taken to the hospital for a sexual assault nurse examination and Child Protective Services was notified. KB. was forensically interviewed at the Dallas Children’s Advocacy Center.
Ashleigh testified that she later learned the sexual abuse had started around “Christmas time,” and the last,time the abuse occurred was the night before KB.’s outcry, on February 12, 2015, when Ash-leigh was at church. KB. testified that appellant touched her “bad spot” beneath her underwear when she was in her room lying on a unicorn pillow. During the sexual assault examination, KB. identified the “bad spot” by circling the vaginal and genital area on a diagram of a small child.
Discussion
1. Sufficiency of the Evidence
In his first issue, appellant contends the evidence was insufficient to support the verdict. Appellant’s argument is that the evidence shows the sexual acts, if any, did not occur during a period of thirty or more days in duration, and the evidence was nonspecific regarding when the sexual acts occurred.
A person commits the offense of continuous sexual abuse of a child if, during a period that is thirty or more days in duration, he commits two or more acts of sexual abuse and, .at the time of the commission of each act, he is seventeen years of age or older and the victim is a child younger than fourteen. Tex. Penal Code Ann. § 21.02(b) (West 2011). Although the exact dates of the abuse need not be proven, the offense does require proof that two or more acts of sexual abuse occurred during a period of thirty days or more. Baez v. State,
In determining the sufficiency of the evidence, the reviewing court considers the evidence in the light most favorable to the’ verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Acosta v. State,
There is sufficient evidence in the record tó support the jury’s determination that appellant committed the charged offense beyond a reasonable doubt. The evidence showed appellant molested two eleven-year-old girls in 1980, one of whom was his stepsister, and he later molested his biological daughter, D.M., when she was only a child. Evidence also showed it was appellant and his wife who suggested to KB.’s mother, Ashleigh, that she and KB, move in with them, and K.B. and her mother moved in on December 15, 2014. There were times when appellant and KB. were at home alone. KB. testified appellant touched her “bad spot,” which she identified by circling the vaginal and genital area on a diagram of a small child, beneath her underwear when she was in her room lying on a 'unicorn pillow,- Ash-leigh ■ testified that' KB. had received a unicorn pillow as a Christmas gift in 2014. Furthermore, Ashleigh testified KB. did not need help bathing or dressing herself, yet she once saw appellant in the bathroom with' KB. while the child was bathing, and K.B. told Ashleigh that appellant had begged her to allow him to help her bathe. Ashleigh also testified that, after the police started their investigation, she learned “[i]t was around Christmas time that it started happening,” and the last act of abuse occurred on Thursday, February
2. Magistrate Presiding Over Jury Selection
In his second issue, appellant argues the trial court erred by allowing the magistrate to preside over jury selection.
The district judge referred jury selection to a Dallas County criminal district court magistrate.
Appellant’s issue involves a question of statutory interpretation, which is a question of law we review de novo. See Williams v. State,
(a) A judge may refer to a magistrate any matter arising out of a criminal case involving:
(1) a negotiated plea of guilty or nolo contendere before the court;
(2) a bond forfeiture;
(3) a pretrial motion;
(4) a postconviction writ of habeas corpus;
(5) an examining trial;
(6) an occupational driver’s license;
(7) an appeal of an administrative driver’s license revocation hearing; and
(8) any other matter the judge considers necessary and proper.
(b) The magistrate may not preside over á trial on the merits, whether or not the trial is before a jury.
Tex. Gov’t Code Ann. § 54.306 (West 2013) (emphasis added). Section 54.308,' which specifies the powers of a magistrate to whom a case has been referred, provides in part:
(a) Except as limited by an order of referral, a magistrate to whom a case is' referred may:
(I) conduct hearings;
(2) hear evidence;
(3) compel production of relevant evidence;
(4) rule on admissibility of evidence;
(5) issue summons for the appearance of witnesses;
(6) examine witnesses;
(7) swear witnesses for hearings;
(8) make findings of fact on evidence;
(9) formulate conclusions of law;
(10) rule on a pretrial motion;
(II) recommend the rulings, orders, or judgment to be made in a case;
(12) regulate proceedings in a hearing; and
(13) do any act and take any measure necessary and proper for the efficient performance of the duties required by the order of referral.
Id. § 54.308 (West 2013).
The question is whether the phrase “trial on the merits,” as it is used in section 54.306(b), includes jury selection. In construing a statute, we give effect to the plain meaning of its text unless the text is ambiguous or the plain meaning leads to absurd results that the legislature could not have possibly intended. Ex parte White,
Appellant directs our attention to section 54.656 of the government code, which identifies proceedings that may be referred to Tarrant County criminal law magistrates. Subsection (d) states: “A magistrate may select a jury. A magistrate may not preside over a criminal trial on the merits, whether or not. the trial is before a jury.” Tex. Gov’t Code Ann. § 54.656(d) (West Supp. 2016). Section 54.658, which specifies the powers of a Tarrant County magistrate to whom a case has been referred, similarly provides that a magistrate may “select a jury.” Id. § 54.658(14) (West 2013). These provisions were amended in 2003 to explicitly allow Tarrant County magistrates to conduct the voir dire portion of a jury trial. See Act of May 16, 2003, 78th Leg., R.S., ch. 910, §§ 2, 3, 2003 Tex. Gen. Laws 2738-39 (codified at Tex Gov’t Code Ann. § 54.656(d) and § 54.658(14)). Noting the difference between sections 54.656 and 54.658, and sections 54.306 and' 54.308, which do not explicitly provide that Dallas County crimi-
The legislative history behind the 2003 amendment sheds little light on the question before us. It did more than merely allow Tarrant County magistrates to select a jury. The amendment.also reduced the then-required unanimous approval of all criminal judges to each magistrate’s appointment to a two-thirds majority, and it allowed magistrates to accept a plea of guilty from those charged only with a misdemeanor, a felony, or both misdemeanor or felony offenses. See Act of May 16, 2003, 78th Leg., R.S., ch. 910, §§ 1-3, 2003 Tex. Gen. Laws 2738-39. Most of the discussion in the staff-prepared bill analysis is devoted to the change in the unanimous approval requirement; allowing Tarrant County magistrates to select a jury is mentioned only briefly. See Senate Research Center, Bill Analysis, Tex. S.B. 922, 78th Leg., R.S. (2003). Furthermore, in Nash v. State,
As the State observes, there are a number of cases concluding, in various contexts, that “trial on the merits” begins when the jury is impaneled and sworn. In Sanchez v. State,
We have cited 'Sanchez for the proposition that “[tjrial begins when the jury is impaneled and sworn.” Slay v. State, No. 05-04-00505-CR,
Texas courts have also held that, for the purposes of article 36.29(a) of the Texas Code of Criminal Procedure trial “begins” once the jury is impaneled and sworn. See Tex. Code Crim. Proc. Ann. art. 36.29 (West Supp. 2016) (providing in part that “after the trial of any felony case begins and a juror dies or, as determined by the judge, becomes disabled from sitting at any time before the charge of the court is read to the jury, the remainder of the jury shall have the power to render the verdict”); Castro v. State,
We also note that Black’s Law Dictionary, a traditional resource for courts attempting to interpret undefined statutory terms,
Trial on the merits: A trial on the substantive issues of a case, as opposedto a motion hearing or interlocutory matter;
Merits: The elements or grounds of a claim or defense; the substantive considerations to be taken into account in deciding a case, as opposed to extraneous or technical points, esp. of procedure;
Voir dire: A preliminary examination of a prospective juror by a judge or lawyer to decide whether the prospect is qualified and suitable to serve on a jury. Loosely, the term refers to the jury-selection phase of trial.
Black’s Law Dictionary, Trial on the Merits, Merits, Voir Dire (8th ed. 2004); see also Merriam-Webster’s New Collegiate Dictionary, Trial, Merit, Voir Dire (1981) (defining “trial” as “the formal examination before a competent tribunal of the matter in issue in a civil or criminal cause in order to determine such issue”; “merit” as “the intrinsic rights and wrongs of a legal case as determined by substance rather than form”; and “voir dire” as “a preliminary examination to determine the competency of a witness or juror”). Thus, definitions found in both technical and nontechnical dictionaries also show that jury selection is not a part of “trial on the merits.”
In summary, “trial on the merits” is a legal term of art that has a specific meaning. See Sanchez,
We reach this conclusion notwithstanding appellant’s citation of Watson v. State,
Section 54.306 also provides that “[a] judge may refer to a magistrate any matter arising out of a criminal case involving
3. Commitment Question
In his third issue, appellant contends the magistrate erred by limiting the defense’s ability to question the jury panel during voir dire.
During a hearing that took place before jury selection, the district judge ruled that appellant’s 1980 conviction for sexual abuse of a child and the testimony of appellant’s stepsister and her Mend were admissible under article 38.37 of the code of criminal procedure. Later, during jury selection, appellant’s trial counsel posed the following question to the venire: “Will you make the State prove their case, this indictment, beyond a reasonable doubt, even if you might hear about some prior felony conviction?” The State objected, arguing that under- article 38.37 the jury was permitted to consider prior instances of misc'onduct in deciding guilt/innocence, and that the question was an improper commitment question. The magistrate sustained the objection.
The trial court has wide discretion in controlling jury selection, and its decisions are reviewed for abuse of discretion. Barajas v. State,
A commitment question “attempts] to bind or commit a prospective juror to a verdict based on a hypothetical set of facts.” Standefer v. State,
Applying the above principles, we conclude the question posed by defense counsel was a commitment question because it asked prospective jurors to refrain from deciding the issue of "guilt based on the fact of a prior felony conviction. See Standefer,
The next step is to determine whether the question includes facts that could lead to a valid challenge for cause. A prior conviction for aggravated sexual assault of a child is admissible in a trial for continuous sexual abuse of a child. See Tex. Code Ceim. Proc. Ann, art. 38.37, § 2(a)(1)(B) (West Supp. 2016). Article 38.37, section 2(b), allows.the jury to consider the extraneous offense “for any bearing the evidence has on relevant matters, including the character of the defendant • and acts performed in conformity with the character of the defendant.” See id. art. 38.37, § 2(b); Reichle v. State, No. 06-14-00073-CR,
In this case, defense counsel sought a commitment from the jury panel that they would not be influenced by the fact of a prior felony conviction in determining whether the State had proved its case beyond a reasonable doubt, even though article 38.37 specifically allows the jury to consider such evidence" under certain circumstances, The question, therefore, added more facts than were necessary to test whether a prospective juror was challenge-able for cause. Standefer,
We affirm the trial couA’s judgment.
Notes
. Ashleigh’s biological mother, Larri, was deceased.
. There is an order in the clerk's record referring the case to the magistrate for the purpose of "conducting voir dire and jury selection.” See Tex. Gov’t Code Ann. § 54.307(a) (West 2013) (to refer case to a magistrate, district court judge must issue order of referral specifying magistrate's duties); see also Ex parte DeLeon, No. 05-11-00594-CR,
. Prior to the enactment of the government code, section 4(b) of former article 1918c of the Revised Civil Statutes contained a provision quite similar to section 54.306(b): "In no event may a judge refer to a magistrate a criminal case permitting the magistrate to preside ovér a trial on the merits, either with or without a jury.” Ex parte Stacey,
. See, e.g., Ex parte Paxton,