EDRICK MARCUS PHILLIPS v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

EDRICK MARCUS PHILLIPS, Appellant v. THE STATE OF TEXAS, Appellee

No. 05-08-01654-CR

Decided: January 27, 2010

Before Justice Bridges and Justices Maloney 1 and Thomas 2

OPINION

Opinion By Justice Maloney

The jury convicted Edrick Marcus Phillips of murder, found the enhancement paragraph true and that appellant used a deadly weapon in the commission of the offense, and assessed a life sentence in the Texas Department Criminal Justice, Institutional Division, and a $10,000 fine.   In one issue, appellant complains the State used improper commitment questions in voir dire.   We affirm the trial court's judgment.BACKGROUND

Several witnesses saw appellant and the deceased arguing, appellant pull out a gun, and appellant shot the complainant.   Appellant's first shot missed the complainant, but his second shot hit the complainant in the neck.   Appellant then rode off on a bicycle.   The deceased died from this gunshot wound some twenty-two days later.

VOIR DIRE

Appellant complains that the State asked improper commitment questions on voir dire.   Specifically, he complains about the State questioning prospective jurors on the relevance of the State producing a gun.   Appellant argues that because the panel's answers did “not give rise to a challenge for cause, these questions were impermissible commitment questions.”   He also contends that the State's voir dire on the complainant's death twenty-two days after being shot preconditioned the prospective jurors to disregard missing evidence.   He acknowledges that he did not object to either line of questioning at trial.   But, appellant contends that because this questioning amounted to systemic violations, it is not subject to harm analysis.

The State responds that appellant did not preserve his complaints for appellate review and it urges that Halprin v. State, 170 S.W.3d 111 (Tex.Crim.App.2005) controls our decision.   We agree.

1. APPLICABLE LAW

To qualify as an improper commitment question, the question must attempt to bind the prospective juror to resolve or refrain from resolving an issue because of one or more facts contained in the question.  State v. Standefer, 59 S.W.3d 177, 180 (Tex.Crim.App.2001).   To preserve an appellate claim that the State asked an improper commitment question, appellant must object to that question.  Halprin, 170 S.W.3d at 119-20.   As an intermediate appellate court, we must abide by the decisions of the court of criminal appeals.   See State v. Delay, 208 S.W.3d 603, 607 (Tex.App.-Austin 2006), aff'd sub nom.   State v. Colyandro, 233 S.W.3d 870 (Tex.Crim.App.2007).

2. Application of Law to the Facts

Appellant first complains about the State questioning the prospective jurors on whether in a “death by firearm case” they would require the State to produce the firearm to find the defendant guilty.   In general, the prospective jurors replied they would like to see a weapon.3  Appellant maintains that because the prospective jurors' answers did not give rise to a challenge for cause, these questions were impermissible commitment questions.   Secondly, quoting Standefer, appellant contends that even if the State's question on the delay between the shooting and the complainant's death could lead to a challenge for cause and thus be a valid inquiry, the question included additional facts not necessary to establish a challenge for cause.   See Standefer, 59 S.W.3d at 182.

Appellant argues that fundamental systemic error prohibits this Court from conducting a harm analysis.   We have reviewed the record and do not agree that “fundamental” error exists.   Nor do we agree that the questions in issue attempted to bind the jury panel to resolve or refrain from resolving an issue on the basis of the facts contained in these questions.   Consequently, appellant forfeited his right to appeal these issues by failing to object.

We affirm the trial court's judgment.

FOOTNOTES

FN3. The State did not produce a weapon at trial..  FN3. The State did not produce a weapon at trial.

FRANCES MALONEY JUSTICE, ASSIGNED

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