JENKINS v. STATE (2025)

OPINION

Appellant Ethan Jenkins appeals his conviction for capital murder arguing that (1) the trial court reversibly erred by overruling an objection he made to a statement by the prosecutor during voir dire, and (2) the trial court reversibly erred by reading portions of the indictment during voir dire and by allowing a prosecutor to read from and refer to portions of the indictment during voir dire. We affirm.

I. Factual and Procedural Background

Appellant was charged by indictment with the offense of capital murder. He pleaded not guilty, but a jury found him guilty as charged. The trial court assessed punishment at confinement for life without the possibility of parole. Appellant timely perfected this appeal.

II. Issues and Analysis

A. Did the trial court err in overruling appellant's objection to a statement by the prosecutor during voir dire?

In his first issue appellant asserts that the trial court abused its discretion in overruling his objection to the following statement by a prosecutor during voir dire: “conflict in testimony doesn't equate to as a – beyond a reasonable doubt.” During voir dire a prosecutor made the following statement:

Okay. Okay. So we've talked about the burden of proof. There's no definition, right? Beyond a reasonable doubt is all we've got. By law, there is no definition. My mentors and older people who have been practicing law, they were telling me, at some point, there was a definition but they got rid of it, okay?

So we know what it's not. It's not beyond all doubt. It's not beyond a shadow of a doubt. It's not a hundred percent certainty. And it's – conflict in testimony doesn't equate to as a – beyond a reasonable doubt.

At this point appellant lodged the following objection:

Objection, Your Honor. The – the[ ] jury has a -- each juror has an opportunity to define for themselves what beyond a reasonable doubt means. And the things that [the prosecutor] just pointed out could very well be some particular juror's definition. The last thing that he said in particular could be someone's definition.

The trial court overruled appellant's objection.

Inquiry into a prospective juror's understanding of what proof beyond a reasonable doubt means is proper. See Fuller v. State, 363 S.W.3d 583, 587 (Tex. Crim. App. 2012). The jury's ability to apply the correct standard of proof is an issue in every criminal case. Id. If anything, the fact that current case law once again provides jurors with no definition of reasonable doubt only heightens the incentive for the parties to test the understanding of the veniremembers. Id. It is particularly apt to inquire whether a prospective juror understands that proof beyond a reasonable doubt must at least constitute a more onerous standard of proof than preponderance of the evidence and clear and convincing evidence. Id. It is but the flip side of the inquiry that prosecutors engage in routinely during voir dire, designed to test whether prospective jurors will hold the State to the inappropriately onerous standard of proof beyond all doubt. Id. While neither area of inquiry purports to assign a precise meaning to the term “reasonable doubt”—leaving that for the jurors themselves to supply, based on their own common-sense understanding of the words—they do serve to set the lawful parameters of reasonable doubt and thereby foster the selection of jurors who will not impose a standard of proof upon the State that they know for sure to be either too lenient (preponderance or even clear and convincing) or too burdensome (all doubt). Id.

Appellant argues that the trial court abused its discretion in overruling appellant's objection because the State misstated the law by telling the venire panel that conflicts in testimony are not reasonable doubt. But the prosecutor did not say that the conflicts in testimony are not reasonable doubt. The prosecutor said that “conflict in testimony” does not equate to “beyond a reasonable doubt.” That statement was correct. A conflict in testimony does not mean “beyond a reasonable doubt,” nor does it mean that the State has proved beyond a reasonable doubt that the defendant is guilty of the charged offense. Because the challenged statement by the prosecutor did not misstate the law, the trial court did not abuse its discretion in overruling appellant's objection. See Railsback v. State, 95 S.W.3d 473, 483–84 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd). We overrule the first issue.

B. Did the trial court err in reading the indictment during voir dire and allowing the State to read parts of the indictment during voir dire?

During voir dire the trial court read the indictment in this case to the venire panel as follows:

In the name and by authority of the State of Texas, the duly-organized Grand Jury of Harris County, Texas, presents in the District Court of Harris County, Texas, that in Harris County, Texas, Ethan Jenkins, hereinafter styled the -- the defendant, heretofore on or about March 25, 2019, did then and there unlawfully, while in the course of committing and attempting to commit the – the robbery of [Jon] Whitfield intentionally caused the death of [Jon] Whitfield by shooting the complainant with a firearm as against the peace and dignity of the State ․

During voir dire, the State also referred to allegations in the indictment:

[Prosecutor]: But as the judge read in the indictment, what we're here for is a capital murder that happened during the course of another felony, okay? So intentional murder committed during the course of committing or attempting to commit -- and then there's numerous felonies, kidnapping, burglary, robbery, sexual assault, arson. There's more.

․

So we have robbery, and that's[ ] what our focus is. So what is robbery, right? You got to know what that -- you got to know what that predicate felony is to understand how you get to capital murder.

So robbery is during the theft or acting with intent to obtain or making -- maintain control of someone else's property, you cause bodily injury to somebody. So in layman's terms, it's, hey, give me your phone. I punch you. I take your phone. That's a robbery. Does everybody understand that?

[Prospective Jurors]: Yes.

[Prosecutor]: Or you put someone in fear of imminent serious bodily injury or death, okay? So that can look different, right? That could be our robbing-the-bank scenario. You walk in with your hand in your jacket, make it look like you've got a gun, pass the note, give me $100,000, or I'll shoot everybody in here. Does everybody understand that?

[Prospective Jurors]: Yes.

[Prosecutor]: You'd be placed in fear for your life. So does the defendant actually have to cause an injury, or does anybody have an answer? Juror Number 11, what do you think?

[Prospective Juror]: No.

[Prosecutor]: No. And you're right, all[ ] right?

In his second issue appellant asserts that the trial court abused its discretion in reading the indictment during voir dire and in allowing the State to read from and refer to parts of the indictment during voir dire. Appellant also argues that during the prosecutor's statements he asked the venire members improper commitment questions about robbery. Appellant concedes that he did not voice the complaints under his second issue during voir dire, but he contends that preservation of error was not required because he complains of the violation of his fundamental right to a fair and impartial jury trial, which he contends is a category-two, waiver-only right under Marin. See Proenza v. State, 541 S.W.3d 786, 797–800 (Tex. Crim. App. 2017); Marin v. State, 851 S.W.2d 275, 279–80 (Tex. Crim. App. 1993). As to appellant's complaint that the prosecutor asked improper commitment questions, appellant waived this complaint by failing to preserve error in the trial court. See Halprin v. State, 170 S.W.3d 111, 119 (Tex. Crim. App. 2005). As to appellant's other complaints under the second issue, we presume, without deciding, that appellant did not have to preserve error, and we address the merits of these complaints.¹

Appellant asserts that it is improper for the trial court or the prosecutor to read the indictment during voir dire. Article 36.01(a)(1) of the Texas Code of Criminal Procedure provides that after a jury is impaneled, the case will proceed by first having the prosecuting attorney read the indictment or information to the jury, except that the prosecuting attorney shall not read any part of the indictment or information reciting prior convictions alleged for enhancement purposes only that are not jurisdictional.² See Tex. Code Crim. Proc. Ann. art. 36.01(a)(1) (West, Westlaw through 2023 4th C.S.). Any such part of the indictment or information shall not be read until the punishment hearing held as provided in article 37.07. See id. arts. 36.01(a)(1), 37.07 (West, Westlaw through 2023 4th C.S.). Appellant asserts that the implication of article 36.01(a)(1) of the Code of Criminal Procedure is that the indictment or information is read for the first time at this point in the case and not during voir dire before the jury is impaneled. Appellant has not cited and research has not revealed a case in which a court holds that reading from the indictment during voir dire is improper.

Statutory construction is a question of law, which we review de novo. See Bradshaw v. State, 707 S.W.3d 412, 416 (Tex. Crim. App. 2024). We first look to the statute to determine if its language is plain. Id. We presume that the legislature intended for every word to have a purpose, and we should give effect if reasonably possible to each word, phrase, and clause of the statutory language. Id. We read phrases and words in context and construe them according to the rules of grammar and usage. Id. If the language of the statute is plain, we follow that language unless it leads to absurd results that the legislature could not have possibly intended. Id. When the plain language leads to absurd results, or if the language of the statute is ambiguous, we consult extra-textual factors to discern the legislature's intent. Id. The seminal rule of statutory construction is to presume that the legislature meant what it said. Id. Under the plain language of article 36.01, that statute does not provide that the indictment or information is read for the first time after the jury is impaneled or that the indictment may not be read during voir dire. See Tex. Code Crim. Proc. Ann. art. 36.01; Hawkins v. State, 278 S.W.3d 396, 401 (Tex. App.—Eastland 2008, no pet.) (holding that article 36.01 does not prohibit the reading of the indictment during voir dire). Because the language of the statute does not lead to absurd results that the legislature could not have possibly intended, we follow this plain statutory language. See Tex. Code Crim. Proc. Ann. art. 36.01; Bradshaw, 707 S.W.3d at 416; Hawkins, 278 S.W.3d at 401.

Appellant contends that the trial court's reading of the indictment and the prosecutor's reading from and referring to parts of the indictment transformed the voir dire process from a process concerned with hypothetical situations into a process based on the facts peculiar to this case, so that the jury could no longer be impartial. Though the indictment provides a date for the alleged offense and alleges that in the course of committing and attempting to commit the robbery of Jon Whitfield in Harris County, appellant caused Whitfield's death by shooting him with a firearm, the indictment does not provide additional details regarding the offense or outline the evidence that the State will supply in an attempt to prove the alleged offense. After reading the indictment during voir dire the trial court stated that the State had the burden of proving what the court had just read beyond a reasonable doubt for the jury to find appellant guilty. We see no basis for concluding that the reading of the indictment during voir dire prevented the jury from being impartial or violated appellant's right to a fair and impartial jury trial. See Hawkins, 278 S.W.3d at 401; Rolle v. State, 367 S.W.3d 746, 759 (Tex. App.—Houston [14th Dist.] 2012, pet. ref'd) (concluding that application paragraph in jury charge in capital murder case was not confusing in part because the jurors heard the indictment read aloud during voir dire); Lara v. State, 740 S.W.2d 823, 828–29 (Tex. App.—Houston [1st Dist.] 1987, pet. ref'd) (concluding that even if the indictment was not read to the jury after it was impaneled, this error would be harmless beyond a reasonable doubt because the trial court and the prosecutor each stated the indictment's allegations during voir dire). Indeed, if reading the indictment prevented the jury from being impartial or fair, Texas criminal procedure would have a serious problem because the Legislature requires that the prosecuting attorney read the indictment or information to the jury after the jury is impaneled. See Tex. Code Crim. Proc. Ann. art. 36.01.

Because the trial court, rather than the prosecutor, read the entire indictment during voir dire, the recitation of the indictment arguably had more weight and authority behind it than if the prosecutor alone had read the indictment. Nonetheless, during voir dire the trial court (1) explained what an indictment is; (2) told the venire panel that the indictment of a person is no indication whatsoever that the person is guilty of the offense charged; (3) stated that the State had the burden of proving the allegations in the indictment beyond a reasonable doubt and that this burden lasts throughout the trial; (4) noted that there is no requirement for the defendant to prove his innocence and that the defendant is presumed innocent; (5) stated that the goal of voir dire was to discuss with the venire members some particulars about the case and the law to see if they would be fair and impartial jurors in this case; and (6) said that the venire panel does not hear any evidence. In an unpublished opinion this court concluded that the trial court's reading of the indictment during voir dire did not deny appellant a fair trial or due process. See Williams v. State, No. 14-19-00979-CR, 2021 WL 5707411, at *7 (Tex. App.—Houston [14th Dist.] Dec. 2, 2021, pet. ref'd) (mem. opinion, not designated for publication). This court did so after considering comments of the trial court during voir dire that are similar to the comments made by the trial court in today's case. See id.

Appellant contends that when the State made the above statements, the voir dire process was transformed from a process concerned with hypothetical situations into a process based on the facts peculiar to this case, so that the jury could no longer be impartial. Appellant asserts that the above statements by the prosecutor exacerbated the issue because the prosecutor re-read some of the factual parts of the indictment, discussed other violent felonies, and stated that in this case there was a robbery.

In his statements quoted above, the prosecutor referred to the trial court's reading of the indictment and then reviewed the elements of the charged offense. During the course of these statements the prosecutor said, “So we have robbery, and that's[ ] what our focus is. So what is robbery, right? You got to know what that -- you got to know what that predicate felony is to understand how you get to capital murder.” The prosecutor's statement that “we have robbery” in context, refers to a predicate felony alleged for the capital murder alleged in the indictment, and then the prosecutor proceeds to discuss the elements of robbery. The prosecutor did not say that appellant committed a robbery. We conclude that the prosecutor's statements did not prevent the jury from being impartial and did not violate appellant's right to a fair and impartial jury trial. See Alvarez v. State, 694 S.W.3d 847, 853–54 (Tex. App.—Houston [14th Dist.] 2024, no pet.); Mendez v. State, 612 S.W.3d 443, 446–49 (Tex. App.—Houston [1st Dist.] 2020, pet. ref'd); Hawkins, 278 S.W.3d at 401; Rolle, 367 S.W.3d at 759; Lara v. State, 740 S.W.2d at 828–29.

Concluding that appellant's arguments under the second issue lack merit, we overrule the issue.

III. Conclusion

Because the statement by the prosecutor challenged in the first issue did not misstate the law, the trial court did not abuse its discretion in overruling appellant's objection to this statement. As to appellant's complaint that the prosecutor asked improper commitment questions, appellant waived this complaint by failing to preserve error in the trial court. As to appellant's other complaints under the second issue, we presume that appellant did not have to preserve error as to these complaints, and we conclude that neither the reading of the indictment during voir dire nor the prosecutor's statements about the indictment prevented the jury from being impartial or violated appellant's right to a fair and impartial jury trial. Because the appellate complaints raised by appellant do not show error by the trial court, we affirm the trial court's judgment.

FOOTNOTES

1.   Although we make this presumption, this Court has recently held in an unpublished opinion that a defendant waived his complaint by failing to object to the reading of an indictment during voir dire. See Diaz v. State, No. 14-23-00653-CR, 2025 WL 635256, at *2–3 (Tex. App.—Houston [14th Dist.] Feb. 27, 2025, pet. filed) (mem. opinion, not designated for publication).

2.   No convictions were alleged in the indictment in today's case.

Randy Wilson, Justice