Defense attorney in a dwi case I am trying next week has filed a motion to voir dire on the parole law and the 25 year minimum (habitual). He wants to ask the panel "Would the minimum length of time a defendant could serve in prison before he could be paroled be something you want to know in answering the issues in the punishment phase of the trial?" "How would this 25 year minimum be important to you?" "Would you be more likely or less likely generally to view a defendant as a continuing threat to society if you knew he would not be paroled for a minimum of 18-20 years?"

The reason he gives in the motion for needing to ask these questions is the defendant will not become eligible for parole until he has served approximately 85% of the sentence.

In the past, we have not been allowed to talk about the 25 year minimum because the jury will figure out that he has prior trips to the penitentiary.

I think these questions go against the instructions in the charge about parole law and not to consider how it may be applied to a certain defendant. I think it will open up a big bag of worms with the panel.

Has anyone dealt with this before or know of any cases on this point?

Hey neighbor-

I have not done any research on this lately, but I don't think the parole questions will fly. I have had cases before where the 25 years came into voir dire, which usually I thought were not helpful to the defense, but they were not on DWI cases either. It almost sounds close to commitment type questions to me. If you don't get any real help elsewhere, I will try and get some answers for you. Usually this is approached by talking about the full range of punishment and talking anywhere from 2 yrs to life or 99. I would be surprised if they can get the parole part by the Court. I'll see what I can find.

25 year minimum is probably ok but not parole. Who knows what parole will be doing 10, 15, 20 years from now. As we have recently seen, a budget crisis can cause some scary results with the CJ system. Remember back before 1994 (30 days for every year sentenced).

This month, the 25 year minimum caused me some problems getting a verdict in a sexual assault. The Jury knew the defendant had priors and thet he was facing 25 years if convicted. There was a strong contingent of jurors who felt like the relationship between the 15 year old victim and the 40 year old defendant was consentual and encouraged by the victim's parents. They wanted to convict but did not want to see him get 25 years. They sent a note out to that effect. It nearly resulted in a hung jury. They took over 13 hours to do the right thing.

If you voire dire on the 25 minimum, I would make sure the jury understands that the defendant may be facing less if the State does not prove the priors (you may elect to not prove one ).

I think you have a duty to explain the full potential range of punishment to the venire panel, and excuse those that cannot follow the law.

You can do this by explaining that you are not talking about this def. in this case, but you are only discussing the law in general. Then explain what a 3rd degree felony DWI is, and what its range of punishment is, and ask if anyone could not, in the proper case, impose the max. Then explain how a 3rd degree DWI can be increased to a 2nd degree with a prior felony conviction, & find out who could not, in the proper case, give the max. Then explain the habitual criminal law, and again ask who could not give the min. and who could never give the max.

As long as you make it clear you are not talking about the defendant, but are just discussing the law in general you'll be ok on appeal. It is unfair to not inform the panel about this aspect of the law, and then, once they are on the panel, and the trial is almost over, have the court explain to them they can only give 25--life. If someone has moral qualms with such a sentence range, they need to be let off jury duty in this case.

I've voir dired like this in a number habitual criminal cases, & when I've spoken to jurors after the trial, they always said they figured from my VD questions that the crook was an habitual criminal. If that hurts the defendant, so what? He has the option of not electing to be sentenced by the jury if he doesn't want the panel to be VD'd on habitual criminal sentencing law.

The charging statute on parole law specifically says the jury cannot try to figure out when the defendant will be released on parole, so I think the defense atty's VD on that point is completely out of bounds.

YOU ARE ALLOWED TO VOIR DIRE ON THE POSSIBLE RANGES OF PUNISHMENT. WHAT YOU CAN NOT DO IS INFORM THE JURY THAT THIS DEFENDANT HAS SPECIFIC PRIOR ENHANCEMENT PARAGRAPHS.

READ BEVILL 573 S.W.2D 781.

AS FOR THE PAROLE LAW, YOUR DEFENSE ATTORNEY IS TOTAL MISQUOTING THE PAROLE LAW IF HE IS CLAIMING 85%.

Kerry,
The questions your defense attorney wants to ask are taken from a standard motion filed in capital cases in which they ask to voir dire on the effect the 40 year parole law would have on the jury's deliberation on the special issues. He just modified the motion to fit non-capital parole law.

Check out Sells v. State, decided by the CCA on March 12.
The Court upheld the trial court's refusal to permit the defense to voir dire on questions that are virtually identical to yours. The Court said they were either impermissible commitment questions under Standefer and/or were ambiguous under Barajas.

Terry is right on how to voir dire in a habitual case. However, in a DWI case you had better lock each juror into not considering the 25 year min in determining guilt/innocence. Even though this appears to be a commitment, you can commit a juror to follow the law. If a juror will not commit to following the law, then they are challengeable for cause. That is a permissible voir dire if you phrase your question exactly right. Personally, I would ask each juror whether they will promise not to consider the 25 min in determining Guilt/Innocence. Then remind them of their promise at closing. The guilty's will remind the not guilty's of the promise in deliberations.

When I have an enhanced or habitual defendant, I always set forth the enahncement plan under 12.42 TPC. I then ask the venire if it seems fair to raise the punishment for someone who has "paid his debt to society." Invariably, one or two veniremen agree that they couldn't follow the law on enhancements because it is "unfair." (and off they go to collect their $6)

recent research showed that the fact of prior convictions can be mentioned to show the enhanced punishment ranges, however the specifics about the type off offense or any details of the offense cannot be mentioned. the eact questions u mentioned should not avaialable to d counsel.