A.  PROPER QUESTION/STATEMENT

Kirkham v. State, 632 S.W.2d 682 (Tex.App.—Amarillo 1982, no pet.).

Voir dire question, “Do you believe a person is best judge of whether they are intoxicated?” is proper and is not a comment on defendant's right not to testify.

Vrba v. State,151 S.W.3d 676 (Tex.App.—Waco, October 27, 2004, pdr ref’d.).

The following questions asked by the prosecution were proper in that they were not “commitment questions:”

“What are some signs that somebody is intoxicated?”

“Who thinks that the process of being arrested would be something that might sober you up a little bit?”

“Why do you think someone should be punished?”

“[W}hich one of these [four theories of punishment] is most important to you in trying to determine how someone should be punished and how much punishment they should receive?”

B.  IMPROPER QUESTION/STATEMENT

Harkey v. State, 785 S.W.2d 876 (Tex.App.—Austin 1990, no pet.).

Defense attorney asking member of jury panel "if they could think of a reason why anyone would not take such a (breath) test" held to be improper in its "form.”

Standefer v. State, 59 S.W.3d 177 (Tex.Crim.App. 2001).

The question, “If someone refused a breath test, would you presume him/her guilty on their refusal alone?” was held to be improper as it constitutes an attempt to commit the juror.  This case also reaffirms that a juror may permissibly presume guilt from evidence of a refusal to give a breath or blood test.

Davis v. State, 2006 WL 2194708, No. 14-03-00585-CR (Tex.App.—Houston [14^th Dist.] 2006.

Even if State  established that breath-testing device was functioning properly at the time of the test, that the test was properly administered, and that defendant’s test result was 0.08 or above, defendant was still entitled to challenge, and the jury to disbelieve, the reliability of the methodology used by the device, and State’s misstatements to the contrary during voir dire required reversal.

C.  CHALLENGE FOR CAUSE  

1.  PRESUMPTION OF INNOCENCE

Harkey v. State, 785 S.W.2d 876 (Tex.App.—Austin 1990, no pet.).

Jurors stating, in response to suggestion by defense counsel that defendant "must be guilty of something or he wouldn't be there" did not provide a basis for challenge for cause.

2.  ONE WITNESS CASE

Zinger v. State, 932 S.W.2d 511 (Tex.Crim.App. 1996).

Leonard v. State, 923 S.W.2d 770 (Tex.App.—Fort Worth 1996, no pet.).

Castillo v. State, 913 S.W.2d 529 (Tex.Crim.App.1995).

Garrett v. State, 851 S.W.2d 853 (Tex.Crim.App.1993).

Statement by venire person that “testimony of one witness would not be enough for him to convict even if that testimony proved all elements beyond a reasonable doubt” may make that juror challengeable for cause but be very careful and read the above cases before you try it.

3.  JURORS WHO WOULD REQUIRE BREATH TEST TO CONVICT 

McKinnon v. State, No. 05-03-00671-CR, 2004 WL 878278 (Tex..App.—Dallas 2004, pet. ref’d) (Not designated for publication).

Question of “Would you require the State to bring you a blood or breath test?” is not improper “commitment question,” and a juror that says that they would not be able to convict without such a test is subject to a challenge for cause.

Fierro v. State, 969 S.W.2d 51 (Tex.App.—Austin 1998, no pet.).

Prospective juror who stated he would be unable to convict in the absence of a breath test was challengeable for cause as he had a bias against a phase of the law on which the State was entitled to rely.  He would be holding State to a higher level of proof of intoxication than the law required.

4.  JURORS ABILITY TO CONSIDER FULL RANGE OF PUNISHMENT

Glauser v. State, 66 S.W.3d 307 (Tex.App.—Houston [1^st Dist] 2000, pdr ref’d).

This was an Intoxication Manslaughter where the trial court properly denied the defense attorney’s challenge for cause on jurors who could not consider probation under the specific facts of the case being tried that went beyond the elements of the offense.  The Court cited the standard set out in Sadler v. State, 977 S.W.2d 140 (Tex.Crim.App.1998) which said that a prospective juror is not challengeable for cause because he or she will use facts to determine punishment.  A prospective juror is not challengeable for cause based on inability to consider the full range of punishment so long as he or she can consider the full range of punishment for the offense as defined by law.  The proper question to determine bias against the law regarding punishment is “Whether in a proper intoxication manslaughter case as defined by statute, where the facts justify it, the venire person could fully and fairly consider the entire range of punishment, including the minimum and maximum.