Jones v. State, 982 S.W.2d 386 (Tex.Crim.App.
1998). (Direct Appeal)
Defendant was convicted in the 292nd District
Court, Dallas County, Mike Keasler, J., of capital murder, and he
appealed. The Court of Criminal Appeals, Mansfield, J., held that:
(1) trial court should have not granted state's motion to remove
juror for cause; (2) error in removing juror for cause was not of
constitutional magnitude; (3) error in removing juror for cause
was harmless; (4) photograph depicting damage to victim's head was
admissible as more probative than prejudicial; and (5) accomplice
witness rule did not apply to testimony offered to prove
extraneous offenses at the punishment stage of a capital murder
trial. Affirmed. Meyer, J., and Baird, J., dissented in separate
opinions.
MANSFIELD, Judge, delivered the opinion of the
Court, in which McCORMICK, Presiding Judge, and KELLER, HOLLAND,
and WOMACK, Judges, joined.
On March 22, 1995, a Dallas County jury found
appellant, George Alarick Jones, guilty of the April 13, 1993,
capital murder of Forest J. Hall.FN1 See Tex. Penal Code §
19.03(a)(2). At the punishment stage of trial, the jury answered
the special issues in such a manner as to require the trial court
to sentence appellant to death. See Article 37.071, § 2(b), (e), &
(g). FN2 Direct appeal to this Court was required by law. See
Article 37.071, § 2(h). Appellant now brings eight points of error
in his brief to this Court. We will affirm the judgment of the
trial court.FN3
FN1. The evidence adduced at the guilt/innocence
stage of trial, viewed in the light most favorable to the jury's
verdict, established that appellant, who was then 19 years old,
kidnapped Hall from a shopping center parking lot in Dallas County,
that appellant transported Hall in Hall's own car to a rural part
of Dallas County, and that appellant then shot Hall twice in the
back of the head with a .380 caliber automatic handgun. Appellant
does not contest the sufficiency of the evidence to support the
verdict at either the guilt/innocence or punishment stages of
trial.
FN2. All references to articles are to those in
the Texas Code of Criminal Procedure. FN3. The author of this
opinion wishes to acknowledge the kind assistance of Womack, J.,
in the drafting of the discussion of points of error numbers one
and two.
In his first and second points of error,
appellant argues that the trial court erred in granting, over his
objection, the State's challenge of veniremember Snyder for cause.
Appellant argues that the State did not carry its burden of
establishing that the challenge was proper under Article 35.16.
The record reflects that the State, without citing any particular
provision of Article 35.16, challenged Snyder under four different
theories but that the trial court granted the challenge under only
one of those theories, to wit: that Snyder would, in the words of
the trial court, “start an accomplice witness behind other
witnesses” with respect to credibility.
To show error in the trial court's grant of the
State's challenge of Snyder for cause, appellant “must demonstrate
one of two things: (1) the trial judge applied the wrong legal
standard in sustaining the challenge, or (2) the trial judge
abused [his] discretion in applying the correct legal standard.”
Vuong v. State, 830 S.W.2d 929, 943 (Tex.Crim.App.), cert. denied,
506 U.S. 997, 113 S.Ct. 595, 121 L.Ed.2d 533 (1992). As an
appellate court, we must uphold the trial court's decision if it
was correct under any theory of law applicable to the case, even
if the trial court gave an incorrect reason for its decision.
Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990).
The first theory that the State offered to the
trial court in support of its challenge of Snyder was that “[t]his
woman will never, ever give an accomplice's testimony the same
weight and credibility that she will [give] other testimony.”
Appellant responded that Snyder had “only indicated that she would
be skeptical” of an accomplice witness, “[b]ut that if she
believed that person, she would give credence to their testimony.”
As noted previously, the trial court granted the State's challenge
under this theory.
The record reflects that, during voir dire, the
State informed Snyder that an “accomplice” was someone “who may
have participated in the crime themselves or ... were there during
the commission of the crime.” Subsequently, the State, defense
counsel, and the trial court all asked Snyder how she would view
accomplice witness testimony. Snyder stated repeatedly, without
equivocation or vacillation, that she would be more skeptical of
an accomplice witness than of witnesses generally because she
would always wonder about the accomplice's motivation for
testifying. She also stated, however, that she could accept an
accomplice's testimony, explaining that “it would just come down
to whether or not I believed the individual.”
In Hernandez v. State, 563 S.W.2d 947, 950 (Tex.Crim.App.1978),
we held that a veniremember was challengeable for cause under
Article 35.16(a)(8), for having a bias or prejudice in favor of or
against the defendant, if the veniremember could not “impartially
judge the credibility of the witnesses.” FN4 In that case, the
veniremember stated that she would always believe police officers
who testified at trial. Our holding in Hernandez, however, must
not be interpreted to mean that a veniremember is challengeable
for cause simply because he would be more skeptical of a certain
category of witness than of witnesses generally. What we meant in
Hernandez was that litigants are entitled to jurors who will be
genuinely open-minded and persuadable, with no extreme or absolute
positions regarding the credibility of any witness. We could not
have meant that jurors must be completely impartial and free of
any trace of skepticism toward any category of witness. Complete
impartiality cannot be realized as long as human beings are called
upon to be jurors. No person sitting as a juror can completely
remove his own experiences, beliefs, and values, however hard he
may try. Thus, Snyder was not challengeable for cause simply
because she stated she would be more skeptical of accomplice
witnesses than of witnesses generally.FN5 She expressed no extreme
or absolute position regarding the credibility of accomplice
witnesses. In short, in granting the State's challenge for cause
under the State's first theory, the trial court applied the wrong
legal standard.
FN4. Article 35.16(a)(8) has since been
renumbered as Article 35.16(a)(9). FN5. Indeed, Snyder's position
was logical, given that accomplice witness testimony is inherently
suspect. See Gill v. State, 873 S.W.2d 45, 48 (Tex.Crim.App.1994);
Walker v. State, 615 S.W.2d 728, 731 (Tex.Crim.App.1981); Tex.Code
Crim. Proc. art. 38.14.
The State argues that Snyder was challengeable
for cause under our holding in May v. State, 738 S.W.2d 261,
270-271 (Tex.Crim.App.), cert. denied, 484 U.S. 872, 108 S.Ct.
206, 98 L.Ed.2d 158 (1987). The State's reliance on May is
misplaced, however. In that capital murder case, we held that a
veniremember was challengeable under Article 35.16(b)(3), for
having a bias or prejudice against a phase of the law upon which
the State was entitled to rely, when she stated that she would
always disregard an accomplice witness' testimony at the
punishment stage of trial and would answer the special issues in
such a manner that the defendant would receive a life sentence.
Thus, May is easily distinguishable from the case at bar.
The second theory that the State offered to the
trial court in support of its challenge of Snyder was that “she is
going to require [the State to] prove beyond a reasonable doubt
that a person is actually going to be outside the penitentiary
before she is ever going to consider [the non-prison segment of
society] to be a part of ‘society’ [for the purposes] of [punishment]
question number one.” See Article 37.071, § 2(b). Appellant
responded that “[a]ll that [Snyder] is requiring is [for] the
State [to] meet its burden of proof.”
The record reflects that, in response to a
leading question from the State, Snyder stated that it would be
“reasonable” for a juror to require the State to prove beyond a
reasonable doubt that the defendant would actually be out of
prison at a certain time before that juror would consider the non-prison
population to be part of “society” for the purposes of the first
punishment issue. The State now argues that Snyder's answer
rendered her challengeable under Article 35.16(b)(3).
Before a veniremember can be properly
challenged under Article 35.16(b)(3), the law must be explained to
him and he must be asked whether he can follow that law regardless
of his personal views. Chambers v. State, 903 S.W.2d 21, 29 (Tex.Crim.App.1995).
Here, no one explained to Snyder the law regarding the term
“society” as used in the first punishment issue. The State should
have explained to Snyder that the term “society” was not defined
by statute and that, therefore, under Article 3.01, jurors must
give the term the meaning that is ordinarily acceptable in common
language, regardless of what the State proves at trial. Camacho v.
State, 864 S.W.2d 524, 536 (Tex.Crim.App.1993), cert. denied, 510
U.S. 1215, 114 S.Ct. 1339, 127 L.Ed.2d 687 (1994); Rougeau v.
State, 738 S.W.2d 651, 660 (Tex.Crim.App.1987), cert. denied, 485
U.S. 1029, 108 S.Ct. 1586, 99 L.Ed.2d 901 (1988). Because the
relevant law was not explained to Snyder, she was not
challengeable under the State's second theory.
The third theory that the State offered to the
trial court in support of its challenge of Snyder was that she
would “never consider prison to be part of ‘society’ ” for the
purposes of the first punishment issue.FN6 Appellant responded
that Snyder was not challengeable on the basis of her views
regarding the meaning of “society” because no one had explained to
her the law regarding that term. FN6. Contrast this with the
State's second theory.
The record reflects that, in response to a
question from the trial court, Snyder stated that she would
exclude the prison population from her definition of “society”
when answering the first punishment issue. The State now argues
that her statement rendered her challengeable under Article
35.16(b)(3). As we noted previously, however, no one ever
explained to Snyder the law regarding the meaning of the term “society.”
Therefore, she was not challengeable under the State's third
theory, either.
The fourth and final theory that the State
offered to the trial court in support of its challenge of Snyder
was that “this juror is going to impose a higher burden of proof
on the State of Texas from the get-go” at both stages of trial.
Appellant responded that “once they showed her what the law is,
she said that she could follow the law.” The trial court then
expressly ruled against the State on this theory.
The record reflects that, initially, Snyder
stated that she would hold the State to a standard of proof higher
than beyond a reasonable doubt. However, once the legal definition
of “reasonable doubt” was explained to her, FN7 Snyder was
unwavering in stating that she would follow the law and hold the
State only to that standard at both stages of trial. On this
record, therefore, we cannot say that the trial court abused its
discretion in refusing to grant the State's challenge under its
fourth theory. FN7. See Geesa v. State, 820 S.W.2d 154, 162 (Tex.Crim.App.1991).
In view of the preceding analysis, it is clear
that the trial court erred in granting the State's challenge of
veniremember Snyder for cause. The next question is whether the
judgment should be reversed because of the error. We must first
decide whether the error is constitutional or otherwise, because
the standard of review for errors of constitutional dimension is
different from the standard for other errors. See Tex.R.App. Proc.
44.2. FN8. Texas Rule of Appellate Procedure 44.2 provides in
relevant part: (a) Constitutional error. If the appellate record
in a criminal case reveals constitutional error that is subject to
harmless error review, the court of appeals must reverse a
judgment of conviction or punishment unless the court determines
beyond a reasonable doubt that the error did not contribute to the
conviction or punishment. (b) Other errors. Any other error,
defect, irregularity, or variance that does not affect substantial
rights must be disregarded.
Constitutional provisions bear on the selection
of a jury for the trial of a criminal case. The Sixth Amendment to
the United States Constitution states: “In all criminal
prosecutions the accused shall have a speedy and public trial by
an impartial jury of the State and district wherein the crime
shall have been committed, which district shall have been
previously ascertained by law.” The right embodied in this clause
of the Sixth Amendment is one that, under the Due Process Clause
of the Fourteenth Amendment, states may not deny. Duncan v.
Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). But
the constitutional right to trial by an impartial jury is not
violated by every error in the selection of a jury.
Moreover, while it is true, as appellant
argues, that the Constitution guarantees to an accused the right
to a speedy trial by an impartial jury, it does not follow that
the rejection of [allegedly] unqualified persons for insufficient
cause would deprive appellant of that right; or that any useful or
legitimate purpose would be served by remanding the case for a new
trial before another impartial jury. It is significant in this
respect, moreover, that no claim is made that the jury, as finally
constituted, was biased or prejudiced; or that appellant was
deprived of a trial by an impartial jury. Shettel v. United States,
113 F.2d 34, 36 (D.C.Cir.1940). Only in very limited circumstances,
when a juror is erroneously excused because of general opposition
to the death penalty (“ Witherspoon ” error),FN9 does the
exclusion of a juror by an unintentional mistake amount to a
constitutional violation. United States v. Prati, 861 F.2d 82, 87
(5th Cir.1988). Accord, United States v. Gonzalez-Balderas, 11
F.3d 1218, 1222 (5th Cir.), cert. denied, 511 U.S. 1129, 114 S.Ct.
2138, 128 L.Ed.2d 867 (1994). Cf. Ross v. Oklahoma, 487 U.S. 81,
108 S.Ct. 2273, 101 L.Ed.2d 80 (1988) (erroneous denial of
defendant's challenge for cause which resulted in loss of
peremptory challenge in capital case did not violate
constitutional right to impartial jury). Although this is a
capital case, the juror was not excused because of her opposition
to the death penalty. There was no violation of the Sixth
Amendment right. FN9. Witherspoon v. Illinois, 391 U.S. 510, 88
S.Ct. 1770, 20 L.Ed.2d 776 (1968).
The people of Texas have the authority to
provide greater protections to criminal defendants than those
provided in the federal constitution. But as to trial by an
impartial jury in criminal cases, they have not. Like its federal
counterpart, the Bill of Rights in the Texas Constitution
recognizes the right to trial by jury. “In all criminal
prosecutions the accused shall have a speedy public trial by an
impartial jury.” Tex. Const. art. I, § 10. As we have said
previously, there is no significant textual difference between the
two constitutional provisions which would indicate that different
standards of protection should be applied, and we can conceive of
no reason why the impartial-jury requirements in the two
constitutions should be different. Marquez v. State, 725 S.W.2d
217, 243 (Tex.Crim.App.1987). A mere error in ruling on a
challenge for cause does not violate Article 1, § 10, of the Texas
Constitution.
Exclusion of jurors for impermissible reasons (such
as race, sex, or ethnicity) may violate other constitutional
provisions, but this case involves no such reason. The error in
this case was a mistaken application of Article 35.16(b)(3). It is
not of constitutional dimension.
We must therefore disregard the error in
granting the State's challenge for cause unless it affected
substantial rights. See Tex.R.App. Proc. 44.2(b); Johnson v. State,
967 S.W.2d 410, 417 (Tex.Crim.App.1998). The standard of review in
our rule is substantially identical to that in Federal Rule of
Criminal Procedure 52(a).FN10 See Notes and Comments, Tex.R.App.
Proc. 44.2 (1997). Therefore, we first shall consider how the
federal courts treat such errors. FN10. “Any error, defect,
irregularity or variance which does not affect substantial rights
shall be disregarded.” Fed. R.Crim. Proc. 52(a).
It was established early in the federal courts
that the incorrect exclusion of a juror did not require reversal
of a judgment. Chief Justice Story, sitting as a circuit judge,
denied a new trial to a defendant who claimed that Quaker jurors
had been excused in error. The Chief Justice reasoned, “Even if a
juror had been set aside by the court, for an insufficient cause,
I do not know that it is a matter of error, if the trial has been
by a jury duly sworn and impaneled, and above all exceptions.
Neither the prisoner nor the government in such a case have
suffered an injury.” United States v. Cornell, 25 F.Cas. 650, 656
(D.R.I.1820) (No. 14,868).
The full Court adopted the same reasoning in
Northern Pacific R.R. Co. v. Herbert, 116 U.S. 642, 6 S.Ct. 590,
29 L.Ed. 755 (1886), in which a juror had been challenged for
cause by Plaintiff Herbert and excused by the trial court. The
Supreme Court held that, even if there was no cause to excuse the
juror, the ruling “did not prejudice the [defendant] company. A
competent and unbiased juror was selected and sworn, and the
company had, therefore, a trial by an impartial jury, which was
all it could demand.” 116 U.S. at 646, 6 S.Ct. 590.
The same holding applies in the trial of
criminal cases in federal courts. See, e.g., United States v.
Gonzalez-Balderas, 11 F.3d 1218, 1222 (5th Cir.), cert. denied,
511 U.S. 1129, 114 S.Ct. 2138, 128 L.Ed.2d 867 (1994); United
States v. Prati, 861 F.2d 82, 87 (5th Cir.1988); Shettel v. United
States, 113 F.2d 34, 36 (D.C.Cir.1940). When we look to the
jurisprudence of other jurisdictions, we find only decisions which
employ the same principle as that of the federal courts. FN11 See
State v. Walden, 183 Ariz. 595, 905 P.2d 974, 988 (Ariz.1995),
cert. denied, 517 U.S. 1146, 116 S.Ct. 1444, 134 L.Ed.2d 564
(1996); People v. Holt, 15 Cal.4th 619, 63 Cal.Rptr.2d 782, 937
P.2d 213 (Cal.1997); Wheeler v. People, 63 Colo. 209, 165 P. 257,
258 (Colo.1917); Wells v. State, 261 Ga. 282, 404 S.E.2d 106, 107
(Ga.1991); State v. Clark, 47 Idaho 750, 278 P. 776, 777-78 (Idaho
1929); State v. Kendall, 200 Iowa 483, 203 N.W. 806, 807 (Iowa
1925); Hunt v. State, 321 Md. 387, 583 A.2d 218, 234 (Md.1990);
State v. Hurst, 153 Minn. 525, 193 N.W. 680, 682 (Minn.1922);
State v. Hill, 827 S.W.2d 196, 199 (Mo.1992); State v. Huffman, 89
Mont. 194, 296 P. 789, 790 (Mont.1931); Bufford v. State, 148 Neb.
38, 26 N.W.2d 383, 386 (Neb.1947); State v. Martinez, 34 N.M. 112,
278 P. 210, 210-11 (N.M.1929); State v. Carson, 296 N.C. 31, 249
S.E.2d 417, 423 (N.C.1978); State v. Wells, 114 S.C. 151, 103 S.E.
515, 516 (S.C.1920); State v. Larkin, 130 Wash. 531, 228 P. 289,
289 (Wash.1924).
FN11. One state's legislature enacted a
contrary rule by statute to abolish the effect of its court's
jurisprudence. Compare La.Code Crim. Proc. art. 800 with, e.g.,
State v. Claire, 41 La. Ann. 1067, 6 So. 806, 806 (1889) (it is
established that appellant cannot complain of court's excusing
juror).
The law in Texas for civil cases is like that
of the federal courts and the courts of the other states. “It has
long been the established rule in this state that even though the
challenge for cause was improperly sustained, no reversible error
is presented unless appellant can show he was denied a trial by a
fair and impartial jury.” City of Hawkins v. E.B. Germany & Sons,
425 S.W.2d 23, 26 (Tex.Civ.App.-Tyler 1968, writ ref'd n.r.e.).
Accord, R. McDonald, 3 Texas Civil Practice in District and County
Courts § 11.11 (1983 rev.). The rule was established more than a
century ago. See Couts v. Neer, 70 Tex. 468, 9 S.W. 40 (1888).
For at least sixty-five years, this Court
employed an essentially similar doctrine when it confronted a
claim that a State's challenge for cause had been erroneously
granted. “Whether the court correctly permitted the state to
challenge the jurors for this cause, it is unnecessary for us to
decide, because the bills nowhere and in no way show that any
objectionable juror was thereby forced upon the appellant. So that,
even if the court erred in such a matter, no injury whatever is
shown to appellant, and he has no cause to complain because
thereof.” Lawson v. State, 67 Tex.Crim. 24, 148 S.W. 587, 588 (Tex.Crim.App.1912).
Accord, Holmes v. State, 70 Tex.Crim. 423, 157 S.W. 487 (Tex.Crim.App.1913).FN12
We followed this rule until we delivered our opinion on rehearing
in Payton v. State, 572 S.W.2d 677 (Tex.Crim.App.1978), which said:
FN12. The ancestor of this Court, the Court of
Appeals, had first decided that there would be reversal for every
error without consideration of its effect. “It has been settled by
this court that the rulings of the court in organizing a jury are
not revisable unless they infringe the law or prejudice the
accused. In this case we think the action of the court in setting
aside the juror upon the challenge of the district attorney for
cause was an infringement upon the law, though it may not have
operated to the prejudice of the defendant; and for this error the
judgment is reversed and the cause remanded.” Wade v. State, 12
Tex.App. 358, 370 (1882) (citations omitted). This early doctrine
was abandoned long ago. It is contrary to our policy that almost
all errors are subject to harmless-error review. See Cain v. State,
947 S.W.2d 262, 264 (Tex.Crim.App.1997).
What is the harmful effect upon the accused of
an erroneous exclusion sua sponte or on challenge for cause by the
State? If the prospective juror is not subject to the alleged
disqualification, and if the defendant objects to the trial
court's erroneous exclusion of the venireman, then the effect,
from the perspective of the defendant, is the same as if the State
had been given an extra peremptory challenge. On this reasoning,
harm would be shown if the State exercised all its peremptory
challenges on other veniremen. This test for harm is supported by
language in Pearce v. State, Tex.Cr.App., 513 S.W.2d 539, where in
addressing a challenge to the trial court's sua sponte dismissal
of a venireman this Court wrote: “There is no showing that the
State exhausted its peremptory challenges and that the prospective
juror, claimed to have been improperly excused, would have served
except for the court's action.”
In Culley v. State, Tex.Cr.App, 505 S.W.2d 567,
on another challenge to the erroneous exclusion of a prospective
juror, the court wrote: “There is no showing that appellant did
not have a fair and impartial trial, nor that the State had
exhausted its peremptory challenges, one of which might have been
used to eliminate the prospective juror.” (Emphasis added.) We
find this test expressed in Pearce and Culley to be appropriate to
the issue before us. Payton v. State, 572 S.W.2d at 680 (footnote
omitted).
The statement that there was a “test expressed
in Pearce and Culley ” was not justified. Neither of those cases
employed, or purported to employ, as a test the fact that the
State had not used all its peremptory challenges. The authors
simply raised as a point of fact the ability of the State to have
excluded the challenged juror. But that ability would not have
affected any substantial right of the defendant, because a
defendant has no right that any particular individual serve on the
jury. The defendant's only substantial right is that the jurors
who do serve be qualified. The defendant's rights go to those who
serve, not to those who are excused. Before Payton, we recognized
that principle, as do the courts of all the other jurisdictions.
A second flaw in the reasoning of Payton is the
statement that the effect of the erroneous exclusion “is the same
as if the State had been given an extra peremptory challenge.”
Ibid. This assertion is not correct. Challenges for cause go to
legal qualifications of jurors, whereas peremptory challenges are
used to eliminate jurors who are thought (or felt) to be
undesirable on a partisan evaluation. A juror's disqualification
is not related to the juror's desirability. It is especially wrong
to equate the State's challenge for cause to a peremptory
challenge, because the State has the right to challenge
disqualified jurors even when their disqualifications might seem
to make them favor the State. See Morrow v. State, 910 S.W.2d 471
(Tex.Crim.App.1995).
By the standards of stare decisis, analysis of
precedent, and logic, the holding of Payton is unsupportable. It
is also contrary to a policy which we think courts should follow:
the liberal granting of challenges for cause. The venire comprises
so many jurors who are clearly qualified that it is unnecessary to
err by denying a challenge for cause on a close question.
We overrule the holding of Payton v. State that
a conviction will be reversed when a juror was erroneously excused
and the State used all its peremptory challenges. We return to our
previous rule, that the erroneous excusing of a veniremember will
call for reversal only if the record shows that the error deprived
the defendant of a lawfully constituted jury. There being no such
showing in this case, points of error one and two are overruled.
In points of error numbers three, four, and
five, appellant argues that the trial court erred in “denying [his]
requests to voir dire [the venire] and present evidence [at trial]
in regard to parole law and for the trial court to charge the jury
thereon.” Appellant argues further that the trial court's denial
of his requests violated his rights under the Sixth Amendment (right
to counsel), Eighth Amendment (ban on cruel and unusual punishment),
and the Fourteenth Amendment (rights to equal protection of the
laws and due process of law).
We have addressed such claims before and have
held adversely to appellant. See Rhoades v. State, 934 S.W.2d 113,
118-119 (Tex.Crim.App.1996) (plurality op.); McFarland v. State,
928 S.W.2d 482, 505 (Tex.Crim.App.1996); Lawton v. State, 913 S.W.2d
542, 556 (Tex.Crim.App.1995), cert. denied, 519 U.S. 826, 117 S.Ct.
88, 136 L.Ed.2d 44 (1996); Sonnier v. State, 913 S.W.2d 511, 518,
521 (Tex.Crim.App.1995); Broxton v. State, 909 S.W.2d 912, 918-919
(Tex.Crim.App.1995); Smith v. State, 898 S.W.2d 838, 846-848 (Tex.Crim.App.)
(plurality op.), cert. denied, 516 U.S. 843, 116 S.Ct. 131, 133
L.Ed.2d 80 (1995); Willingham v. State, 897 S.W.2d 351, 359 (Tex.Crim.App.1995).
We overrule points of error numbers three, four, and five.
In his sixth point of error, appellant
complains of the admission in evidence, at the punishment stage,
of State's exhibit 37, which was a photograph of Kindra Buckner's
face taken after her body was found on September 21, 1993.FN13
Appellant concedes that the photograph was not without relevance,
“because ... it depicts the damage to the victim's head.” He
“strenuously contends, however, that any such relevance [was]
substantially outweighed by the prejudicial effect of the picture.”
See Tex.R.Crim. Evid. 403. Appellant insists that the photograph
was too gruesome to be admissible. FN13. See footnote 11 and
accompanying text.
The record does not contain the photograph in
question, but, in its brief, the State describes the photograph as
being an eight-inch by twelve-inch color photograph of Buckner's
face taken at the scene of the extraneous offense. According to
the State, “[a] large hole appears in the face, [and] the teeth
are blown outward to one side.” The briefs contain no other
information about the photograph.
Once a defendant objects to photographic
evidence on the basis of Rule 403, the trial court must weigh its
probative value against its potential for unfair prejudice.
Narvaiz v. State, 840 S.W.2d 415, 429 (Tex.Crim.App.1992), cert.
denied, 507 U.S. 975, 113 S.Ct. 1422, 122 L.Ed.2d 791 (1993). An
appellate court reviewing the trial court's decision may reverse
it only for an abuse of discretion, i.e., only when the trial
court's decision was outside the zone of reasonable disagreement.
Ibid.
On the record before us, we can discern no
abuse of discretion on the part of the trial court in admitting
State's exhibit 37. The photograph in question apparently depicted
no more than the gruesome nature of the injuries inflicted by
appellant and Martin. Although a crime scene photograph may be
gruesome, that fact alone will rarely render the photograph
necessarily inadmissible under Rule 403. Id. at 430; Long v. State,
823 S.W.2d 259, 272-273 (Tex.Crim.App.1991), cert. denied, 505 U.S.
1224, 112 S.Ct. 3042, 120 L.Ed.2d 910 (1992). We overrule point of
error number six.
In point of error number seven, appellant
contends that the trial court erred when it “denied [his] request
for a Rule 403 balancing test” with respect to State's exhibit 37.
Appellant argues that the trial court should have articulated the
factors it considered when overruling his Rule 403 objection, so
as to facilitate appellate review. See Montgomery v. State, 810
S.W.2d 372, 393 n. 4 (Tex.Crim.App.1990) (opinion on reh'g).
The record reflects that the trial court did
not explicitly state into the record its mental process in
overruling appellant's Rule 403 objection to State's exhibit 37.
The record also reflects, however, that appellant did not ask the
trial court to do so and did not object when the trial court
failed to do so. Any error, therefore, has not been preserved for
appellate review. Tex.R.App. Proc. 33.1. We overrule point of
error number seven.
In his eighth and final point of error,
appellant argues that the trial court erred in overruling his
objection to the charge at punishment. Appellant orally objected
to the charge “for its failure to give an instruction to the jury
on the accomplice witness testimony [of Jamoan Martin] such as the
one given in the charge on guilt or innocence.” See Article 38.14.
The record reflects that, during the punishment stage, Martin
testified about an extraneous murder committed by appellant.
Appellant has shown no error. The accomplice
witness rule embodied in Article 38.14 does not apply to testimony
offered to prove extraneous offenses at the punishment stage of a
capital murder trial. Farris v. State, 819 S.W.2d 490, 507 (Tex.Crim.App.1990),
cert. denied, 503 U.S. 911, 112 S.Ct. 1278, 117 L.Ed.2d 504
(1992). We overrule point of error number eight. Having found no
reversible error, we affirm the judgment of the trial court.
PRICE, J., concurred in the judgment of the
Court. BAIRD and MEYERS, JJ., delivered dissenting opinions.
OVERSTREET, J., dissented without a written opinion.
*****
BAIRD, Judge, dissenting.
Direct and controlling precedent from this
Court mandates reversal when a trial judge erroneously grants a
State's challenge for cause in a capital case. Richardson v. State,
744 S.W.2d 65 (Tex.Cr.App.1987); and, Bell v. State, 724 S.W.2d
780 (Tex.Cr.App.1986). However, the majority ignores this clear
mandate and, in an act of blatant result-oriented jurisprudence,
contorts Tex.R.App. P. § 44.2 to hold implicitly that there is no
constitutional right to an impartial jury and to hold explicitly
that a criminal defendant does not have a substantial right to a
jury selected pursuant to the legislative scheme prescribed by
Tex.Code Crim. Proc. Ann. chapter 35.FN1 Part I of this opinion
discusses why the error herein was constitutional and Part II
offers an alternative discussion of why a defendant has a
substantial right to a jury selected pursuant to the scheme
established by the Legislature.
FN1. Tex.R.App. P. 44.2, Reversible Error in
Criminal Cases (a) Constitutional error. If the appellate record
in a criminal case reveals constitutional error that is subject to
harmless error review, the court of appeals must reverse a
judgment of conviction or punishment unless the court determines
beyond a reasonable doubt that the error did not contribute to the
conviction or punishment. (b) Other errors. Any other error,
defect, irregularity, or variance that does not affect substantial
rights must be disregarded.
I.
A.
The most valuable right guaranteed by our
Constitution is the right to trial by an impartial jury. U.S.
Const. amend. VI. The value of this right depends upon the
impartiality of the jury. Juror qualification is the province of
the Legislature. Tex. Const. art. XVI, § 19.FN2 To discharge this
constitutional mandate, the Legislature has enacted legislation
prescribing juror qualifications and providing challenges for
cause and peremptory strikes. See generally, Tex.Code Crim. Proc.
Ann. Chapter 35. A jury selected pursuant to this legislative
scheme constitutes an impartial jury under the Sixth Amendment.
FN2. Article XVI, § 19 of the Texas
Constitution provides: “The Legislature shall prescribe by law the
qualifications of grand and petit jurors; provided that neither
the right nor the duty to serve on grand and petit juries shall be
denied or abridged by reason of sex.” However, this
constitutionally mandated scheme was breached when the trial judge
granted the State's challenge for cause to veniremember Snyder.
Because the obvious purpose of the legislative scheme is to ensure
an impartial jury, a Sixth Amendment right, the harm analysis for
an error which results in a breach of the scheme must be conducted
under the constitutional standard of Tex.R.App. P. 44.2(a).
B.
Additionally, by subverting Tex.Code Crim. Proc.
Ann. art. 35.16(b)(3), the trial judge violated appellant's due
process rights as mandated by the Fourteenth Amendment to the
United States Constitution and appellant's due course of law right
required by Article 1 § 19 of the Texas Constitution. Due process
is the most comprehensive and least specific of the liberties
protected by the Constitutions. See Rochin v. California, 342 U.S.
165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). It is based on fundamental
fairness and brings to the individual States the requirement that
those States respect beliefs that are “implicit in the concept of
ordered liberty.” See Palko v. Connecticut, 302 U.S. 319, 325, 58
S.Ct. 149, 152, 82 L.Ed. 288 (1937). The instant case is a capital
case; a heightened need for reliability in all processes is
required because of the qualitative difference between death and
all other punishments. See Woodson v. North Carolina, 428 U.S.
280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). With this heightened
need for reliability, the Fourteenth Amendment Due Process issue
raised by a trial judged errantly granting a State's challenge for
cause in a capital case must be examined.
The United States Supreme Court has declared,
in criminal cases, “certainly one of the basic purposes of the Due
Process Clause has always been to protect a person against having
the Government impose burdens upon him except in accordance with
the valid laws of the land.” Giaccio v. Pennsylvania, 382 U.S.
399, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966). The Fifth Circuit has
recognized that “public officials violate substantive due process
rights if they act arbitrarily or capriciously.” Fowler v. Smith,
68 F.3d 124 (5th Cir.1995).FN3
FN3. This case deals involves the wrongful
discharge of a public employee and is not offered as direct
criminal precedent, only to show this concept is a recognized part
of due process. The Texas legislature has specifically delineated
the requirements for a valid challenge for cause. The trial judge,
in the instant case, violated this legislative mandate in granting
the State's challenge for cause to veniremember Snyder. By failing
to follow the non-discretionary legislative mandate in accepting
challenges for cause, the trial court violated due process.FN4 A
trial court may not ignore a non-discretionary law in a critical
setting like jury selection for a capital murder trial and still
comport with the heightened expectation of fundamental fairness
required by the Due Process Clause of the Fourteenth Amendment and
Article 1 § 19 of the Texas Constitution.FN5
FN4. This error meets the fundamental fairness
aspect of the Fourteenth Amendment because any error in creating
the jury encompasses each moment that jury hears evidence or
deliberates. Error in composing the jury infects the structure of
the trial by exposing all procedure and evidence to an incorrectly
selected jury. FN5. The majority recognizes the issue as ‘did this
error deny the defendant a Sixth Amendment right to trial by an
impartial jury?’ The majority answers negatively and moves on
while ignoring the Fourteenth Amendment aspects of the question.
The majority also relies on U.S. v. Prati, 861 F.2d 82 (5th
Cir.1988) in answering the 6th Amendment question. Ante at 391.
Prati is not applicable because it is a non-capital case that uses
a harmless-error analysis that the Court notes is not to be used
in capital cases. Prati at 87, footnote 6.
C.
Having determined the error is of a
constitutional magnitude, a harm analysis review under Tex.R.App.
P. § 44.2(a) requires a determination “beyond a reasonable doubt
that the error did not contribute to the conviction or punishment.”
I take guidance in determining the applicability of harmless error
review from Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55
L.Ed.2d 426 (1978). Although the instant case and Holloway revolve
around different issues, the same principle of analysis applies.
In Holloway, the Supreme Court stated: ... In the normal case
where a harmless-error rule is applied, the error occurs at trial
and its scope is readily identifiable. Accordingly, the reviewing
court can undertake with some confidence its relatively narrow
task of assessing the likelihood that the error materially
affected the deliberations of the jury....But in a case of joint
representation of conflicting interests the evil-it bears
repeating-is in what the advocate finds himself compelled to
refrain from doing....It may be possible in some cases to identify
from the record the prejudices resulting from an attorney's
failure to undertake certain trial tasks, but even with a record
of the sentencing hearing available it would be difficult to judge
intelligently the impact of a conflict on the attorney's
representation of a client. And to assess the impact of a conflict
of interests on the attorney's options, tactics, and decisions in
plea negotiations would be virtually impossible. Thus, an inquiry
into a claim of harmless error here would require, unlike most
cases, unguided speculation. (emphasis in the original)( internal
citations omitted). Id., 435 U.S. at 491, 98 S.Ct. at 1182.
This Court held similarly in Warmowski v. State,
853 S.W.2d 575, 578 (Tex.Cr.App.1993): The point is well taken
that if the nature of an error is such that the record will not
provide a basis for estimating its contribution to conviction or
punishment, it does not matter whether we declare the error
subject to a harm analysis or not-the result will invariably be
the same. As beneficiary of the error, the State has the burden to
demonstrate harmlessness. Arnold v. State, 786 S.W.2d 295, at 298
(Tex.Cr.App.1990). On a record from which the likelihood of harm
cannot meaningfully be estimated, the State will be unable to
satisfy its burden.
This Court cannot hold the instant error was
harmless without engaging in “unguided speculation.” No judge on
this Court can produce a clear and substantiated view of how
venireperson Snyder would have assessed the evidence or voted on
the punishment issues in appellant's capital trial.FN6 The lack of
opportunity to assess harm arising from this error is inherent in
the error itself; no one can say with assurance what might have
happened had veniremember Snyder not been improperly excused. This
error is an error of constitutional magnitude, that involves the
framework of the trial and defies harmless error analysis.FN7 The
law requires the conviction be reversed and the case remanded to
the trial court.
FN6. Here I draw attention to the statutory
requirement of unanimity before the death penalty can be imposed.
Our law requires that all twelve jurors answer the special issues
in favor of death. We cannot assume because twelve others answered
in favor of death that Snyder too would have answered as such.
FN7. See Twine v. State, 970 S.W.2d. 18, (Tex.Cr.App.1998)(BAIRD,
J., dissenting), for another discussion of why harmless-error
analysis cannot be undertaken in reference to an error whose
consequence is not captured by the record. In Twine, this court
attempted a harm analysis based on the trial judge's denying
defense the opportunity to make a timely opening statement.
II.
A.
The majority declares this error is not “of
constitutional dimension,” and attempts to perform an analysis of
this error under Tex.R.App. P. 44.2(b). Ante at 391. They begin
their analysis by drawing a parallel between Tex.R.App. P. 44.2(b)
and the Federal Rules of Criminal Procedure 52(a). Ante at 392.
The majority attempts to analyze pertinent federal and state law
and its applicability to the case sub judice. Ante at 392. The
findings of other jurisdictions' criminal law are reinforced by
looking to Texas civil law regarding the question of the instant
case. Ante at 392. The majority ends by incorrectly referring to
Lawson v. State, 67 Tex.Cr. 24, 148 S.W. 587 (1912),FN8 and to
Payton v, State, 572 S.W.2d 677 (Tex.Cr.App.1978). Ante at 393.
FN8. Lawson has never been cited by any court
as authority. Neither Lawson, nor Payton, have bearing on the
instant issue. Lawson is an ancient case from 1912 that has been
overruled and Payton, decided in 1978, gives a rule for
non-capital cases that does not apply to capital cases.FN9 By
1986, this court had adopted the following rule in capital cases:
In capital murder cases, if the trial court improperly sustains a
State's challenge for cause and excludes a qualified juror, over a
defendant's objection, reversible error arises regardless of
whether the State has exhausted its peremptory challenges. This is
because peremptory strikes are exercised after each prospective
juror is questioned, under Tex.Code Crim. Proc. Ann. art. 35.13,
as opposed to after the entire panel is questioned in a
non-capital case. Grijalva v. State, 614 S.W.2d 420 (Tex.Cr.App.1981).
See also Turner v. State, 635 S.W.2d 734 (Tex.Cr.App.1982); and,
Bell v. State, 724 S.W.2d 780, 795 (Tex.Cr.App.1986). A clear and
concise reasoning for this holding can be found in Richardson v.
State, 744 S.W.2d 65, 69-70 (Tex.Cr.App.1987):
FN9. Interestingly, the majority refers to
United States v. Cornell as guiding established precedent for
their holding. Ante at 392. Cornell is a precursor to Witherspoon/Witt
error, and therefore, totally inapplicable to the instant case.
Chief Justice Story's rationale in Cornell for excluding the
prospective Quaker venire members (because “Quakers entertain
peculiar opinions on the subject of capital punishment,”) would
certainly be unacceptable today under the law. Id., 25 F.Cas. at
655-56. In capital cases, however, it is ordinarily immaterial
that the State had strikes remaining at the end of the voir dire
examination. If the trial court erroneously sustains a State's
challenge for cause over defense objection during individual voir
dire in a capital case, this has the immediate effect of giving
the State an additional peremptory strike. Grijalva v. State, 614
S.W.2d 420 (Tex.Cr.App.1981). As stated in Grijalva, supra at 424:
“The manner of exercising peremptory challenges
is explicitly differentiated in Arts. 35.13 and 35.25, V.A.C.C.P.
The procedure followed in Chambers [v. State, 568 S.W.2d 313 (Tex.Cr.App.1978)
] and this case is stated in Art. 35.13, supra: ‘A juror in a
capital case in which the state has made it known it will seek the
death penalty, held to be qualified, shall be passed for
acceptance or challenge first to the state and then to the
defendant. Challenges to jurors are either peremptory or for
cause.’ ” On the other hand, in non-capital cases, such as those
upon which Chambers relied, the procedure is quite different, as
provided in Art. 35.25, supra: “ ‘In non-capital cases and in
capital cases in which the State's attorney has announced that he
will not qualify the jury for, or seek the death penalty, the
party desiring to challenge any juror peremptorily shall strike
the name of such juror from the list furnished him by the clerk.’
”
To allow the State to render harmless the
improper challenge for cause and excusal of a venire member by the
simple expedient of not using all of the State's peremptory
challenges would be, as stated in Grijalva, supra at 424-425: ...
corruption of the peremptory strike practice that violates the
terms of Art. 35.13, supra, and gives an unfair advantage to the
State in the jury selection process.
First, to allow the State to exercise its
peremptory challenges in a capital case after conclusion of the
voir dire examination gives it the benefit of making its judgments
with a perspective of the entire panel, a perspective that is not
given the defendant.
Second, giving such a privilege to the State
allows it to withhold its strikes until after the defendant has
exercised his strikes, even though Art. 35.13, supra, explicitly
states that the qualified venire man shall be passed first to the
state and then to the defendant. The statute would give the
benefit to the defendant in instances where both sides might
desire to strike the same venire man. Allowing the State to wait
until the end of the selection process would transfer that benefit
to the State.
Third, to allow retrospective exercise of
peremptory challenges on appeal gives the State even greater
advantages. When used on appeal the State effectively postpones
exercise of its strikes until error has been found, and then with
the benefit of the ruling of this Court as its guide the State can
maximize the accuracy of the strikes not used at trial. In
actuality this Court not only counsels the State, but actually
exercises the strike for the State. In effect a peremptory strike
against a prospective juror is transformed into a peremptory
strike against a ground of error. (Emphasis in original).
The majority provides no explanation,
whatsoever, why the above reasoning does not apply to appellant
today.
B.
Because they were decided before the
promulgation of Rule 44.2, neither Bell, supra, nor Richardson,
supra, mention whether a criminal defendant has a substantial
right to a jury selected pursuant to the legislative scheme
prescribed Tex.Code Crim. Proc. Ann. chapter 35. But the question
clearly answers itself. Certainly, all criminal defendants have a
statutory right to a jury empaneled by the scheme prescribed by
the Code of Criminal Procedure. To hold otherwise is to judicially
repeal and wholly circumvent the legislative enactments that
prescribe challenges for cause and the jury selection process in
capital trials.
Moreover, both Bell, and Richardson, rely on
Grijalva v. State, 614 S.W.2d 420 (Tex.Cr.App.1981), et. al., to
declare that in a capital case, a trial judge errantly sustaining
a State's challenge for cause commits reversible error. By
following stare decisis and reversing capital cases which contain
this error, this Court has impliedly recognized that an accused
has a substantial right in the trial judge exclusively sustaining
challenges for cause proscribed by statute. If this substantial
right did not exist, there would be no reason for the Bell /
Richardson rule.
By standards of stare decisis, analysis of
precedent, and logic, this court should not ignore its previous
decisions and fail to hold that an accused has a substantial right
in the trial court following legislative mandate during the jury
selection process. To refuse to find such a substantial right
would circumvent the legislative act that prescribed challenges
for cause and jury selection process in capital trials.
C.
Moreover, the majority's interpretation of Rule
44.2(b) violates our rule making authority. The Legislature has
specifically prohibited this Court from such actions by enacting
the following statute: (a) The court of criminal appeals is
granted rulemaking power to promulgate rules of posttrial,
appellate, and review procedure in criminal cases except that its
rules may not abridge, enlarge, or modify the substantive rights
of a litigant. Tex. Gov't Code Ann. § 22.108(a).
In Flowers v. State, 935 S.W.2d 131 (Tex.Cr.App.1996),
this Court held that a substantial right, the right to appeal an
involuntary plea, could not be barred by a new rule of appellate
procedure. The same reasoning should be applied today; prior to
today's majority opinion, capital defendants had a substantial
right to appeal an error committed by the trial judge in errantly
granting a challenge for cause by the State and to obtain a
reversal of their convictions. The new rule, 44.2, should not be
interpreted to deny a defendant reversal of his conviction. Such
an interpretation abridges the defendant's rights and thereby,
violates our rule making authority.
D.
A remaining problem with today's opinion is
requiring an accused to show that a partial jury heard his case
before this Court will reverse for error in a trial judge
improperly sustaining a State's challenge for cause. This he can
not do.FN10
FN10. An exhaustive search of this court's
published cases fails to identify a single instance of a case
being reversed due to a partial jury. There have been numerous
instances of unqualified or disqualified jurors hearing cases and
causing reversals, but not a single case has hinged upon a partial
jury as the majority now requires for reversal. Ante at 394. Texas
Rules of Criminal Evidence § 606(b) [now combined with the Texas
Rules of Civil Evidence and renamed Tex. Rules of Evidence] bars
jurors from testifying “as to any matter or statement occurring
during the course of the jury's deliberations or to the effect of
anything upon his or any other juror's mind or emotions as
influencing him to assent or dissent from the verdict or
indictment or concerning his mental processes in connection
therewith ...”.FN11 No juror can testify regarding a bias or
partiality affecting deliberations. No bias or partiality is
revealed by jurors passively absorbing evidence as it is offered
in the courtroom. A jury, once assembled, is allowed no
opportunity to reveal any partiality. An accused can neither
impeach a jury for partiality after the verdict has been delivered
nor can he approach jurors after voir dire and before the trial
has concluded.
FN11. For an excellent explanation of the
utility and necessity of this bar, see Tanner v. United States,
483 U.S. 107, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987); McDonald v.
Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300 (1915); or,
Buentello v. State, 826 S.W.2d 610 (Tex.Cr.App.1992). An accused
has no power to seek redress of this error once it occurs. Once
voir dire has ended, the accused can not obtain information
necessary to submit an allegation to a reviewing court that he was
not tried by an impartial jury. Today's result-oriented holding
sets a crippling and impossible standard for reviewing a trial
judge's error in sustaining a State's challenge for cause in a
capital case.
CONCLUSION
The effect of the majority opinion is to permit
the State to request and the trial judges to grant unfounded
challenges for cause thereby trampling the defendant's
Constitutional rights to an impartial jury, due process of law and
due course of law, and denying the defendant his substantial right
to appeal and receive a reversal upon a breach of the legislative
scheme for jury selection. For all of the reasons stated above, I
dissent.
*****
MEYERS, Judge, dissenting.
I again find myself unenlightened by a majority
opinion of this Court. Effective September 1, 1997, the Court
promulgated a new rule for assessing harm arising from non-constitutional
trial error. tex.R.App. Proc. 44.2(b). It is now over a year past
its inception and I have no better understanding of how to apply
this rule than when it was promulgated.
I.
Texas Rule of Appellate Procedure 44.2(b),
provides in part that as to non-constitutional error, “[a]ny other
error, defect, irregularity, or variance that does not affect
substantial rights must be disregarded.” The first case to apply
this portion of the new rule was King v. State, 953 S.W.2d 266,
271 (Tex.Crim.App.1997). There, the Court said “[a] substantial
right is affected when the error had a substantial and injurious
effect or influence in determining the jury's verdict[,]” citing
Kotteakos v. U.S., 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557
(1946). The Court concluded, in light of the overwhelming evidence
of future dangerousness that was properly admitted, any error in
admitting certain other evidence “did not have a substantial or
injurious influence on the jury's decision.” King, 953 S.W.2d at
273. More recently, in Johnson v. State, 967 S.W.2d 410 (Tex.Crim.App.1998),
the Court concluded there was harm in the admission of certain
evidence. We stated the test for assessing harm for
nonconstitutional error: “[a] criminal conviction should not be
overturned for non-constitutional error if the appellate court,
after examining the record as a whole, has fair assurance that the
error did not influence the jury or had but a slight effect.” Id.
at 417.
And so it would seem that the Court had
established the test under 44.2(b) as whether we can say with
“fair assurance” that the error “did not influence the jury or had
but a slight effect.” But this analysis does not appear in the
majority opinion today. Today, the majority's conclusion that the
error is harmless is based in part on “how the federal courts” and
other jurisdictions have “treated such errors.” Majority opinion
at 391-392. A reading of these cases fails to reveal the
applicable or controlling rule for assessing harm. Further, it is
not even clear from some of these cases whether the question was
one of harm or one of alleged constitutional error. For instance,
in United States v. Prati, 861 F.2d 82, 87 (5th Cir.1988), the
Court phrased the issue presented as whether the defendant's
conviction “should be reversed because the trial judge erred in
granting, over the defendant's objection, the government's
challenge for cause of a prospective juror from the venire.” In
concluding “this is not a ground for reversing the defendant's
convictions[,]” the Fifth Circuit relied on Ross v. Oklahoma, 487
U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988). There, the high
Court addressed whether the erroneous grant of a State's challenge
for cause violated the petitioner's “Sixth and Fourteenth
Amendment right to an impartial jury, and his Fourteenth Amendment
right to due process.” Id. at 2277, 108 S.Ct. 2273. This is far
from the question presented in this case which already presumes we
are not dealing with constitutional error.FN1
FN1. Indeed, part of the problem in structuring
Rule 44.2 as dependent upon whether the error is constitutional or
non-constitutional is that virtually all statutes have some kind
of constitutional basis. For example, while a defendant does not
have a constitutional right to a certain number of peremptory
strikes, the jury selection procedures provided for in the Code of
Criminal Procedure are designed to achieve an end consistent with
ensuring a defendant his constitutional right to a fair and
impartial jury. Which leads to the next analytical problem in the
majority's opinion. The Court's conclusion that the error is
harmless is also based upon reasoning that no “substantial right”
of the defendant has been affected: [T]he ability of the State to
have excluded the challenged juror ... would not have affected any
substantial right of the defendant, because a defendant has no
right that any particular individual serve on the jury. The
defendant's only substantial right is that the jurors who do serve
be qualified. The defendant's rights go to those who serve, not to
those who are excused. Majority opinion at 393. There are two
problems with this. While on its face subsection (b) appears to be
concerned with determining what a defendant's “substantial rights”
are, in King and Johnson the Court couched the inquiry in terms of
influence rather than rights. A larger problem is that the Court's
conclusion that a “substantial right” was not violated sounds of a
constitutional analysis: [A] defendant has no right that any
particular individual serve on the jury. The defendant's only
substantial right is that the jurors who do serve be qualified.
The defendant's rights go to those who serve, not to those who are
excused. Majority opinion at 393. By saying there is no harm here
because there is no showing the defendant did not get a fair and
impartial jury, the Court renders a subsection (b) error-which
pertains by definition to only non-constitutional error-harmless
because it does not involve subsection (a) error, a constitutional
violation!
II.
As discussed above, in King, we said the
question under subsection (b) is whether we could say with fair
assurance the error did not have “a substantial and injurious
effect or influence in determining the jury's verdict.” This test
is derived from Kotteakos, supra. Following is the entire
discussion from which that language appears:
If, when all is said and done, the conviction
is sure that the error did not influence the jury, or had but very
slight effect, the verdict and the judgment should stand, except
perhaps where the departure is from a constitutional norm or a
specific command of Congress. But if one cannot say, with fair
assurance, after pondering all that happened without stripping the
erroneous action from the whole, that the judgment was not
substantially swayed by the error, it is impossible to conclude
that substantial rights were not affected. The inquiry cannot be
merely whether there was enough to support the result, apart from
the phase affected by the error. It is rather, even so, whether
the error had substantial influence. If so, or if one is left in
grave doubt, the conviction cannot stand. Kotteakos, 328 U.S. at
764-65, 66 S.Ct. 1239 (citations omitted). In recent opinions
discussing Kotteakos, the Supreme Court has not articulated the
level of confidence as “fair assurance,” but rather has emphasized
the notion of “grave doubt” as lying at the heart of the standard
articulated there. E.g., O'Neal v. McAninch, 513 U.S. 432, 115
S.Ct. 992, 995-98, 130 L.Ed.2d 947 (1995)(discussing at length
“grave doubt” standard established in Kotteakos ); United States
v. Lane, 474 U.S. 438, 449, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986)(quoting
only “grave doubt” portion of Kotteakos analysis).
Viewing influence in terms of grave doubt makes
the most sense in the context of subsection (b) of our new rule
since it is easily contrasted with subsection (a), which also
turns on the level of doubt. Thus, under subsection (b), if the
reviewing court has grave doubt about whether a non-constitutional
error substantially affected the jury's verdict, the party
alleging harm must win. See O'Neal, supra. But, unlike former
81(b)(2), which required reversal unless the reviewing court
determined beyond a reasonable doubt that the error did not
contribute to the conviction or punishment, non-constitutional
error under the new rule leads to reversal only when the reviewing
court has grave doubt about its affect on the jury. In other words,
a reviewing court should not reverse a conviction, even when the
court cannot say beyond a reasonable doubt that the non-constitutional
error did not contribute to the jury's decision on conviction or
punishment, unless it has grave doubt about the effect of that
error on the jury's determinations.
So, based upon King 's interpretation of
subsection (b), and Kotteakos, appellant's conviction should be
reversed only if we have grave doubt about the effect of the
erroneous granting of the State's challenge for cause on the
jury's determination. Under former 81(b)(2), we held the erroneous
grant of a State's challenge for cause was reversible error.
Zinger v. State, 932 S.W.2d 511 (Tex.Crim.App.1996)(holding
wrongful granting of State's challenge for cause reversible
error); Howard v. State, 941 S.W.2d 102 (Tex.Crim.App.1996)(opinion
on reh'g)(erroneous grant of State's challenge for cause
reversible error). While Rule 44.2 imposes a less exacting
standard, error in the voir dire context is no less impossible to
gauge. Given the impossibility of knowing or even speculating
about the effect of the improper grant of a State's challenge for
cause, I would reserve grave doubt about the effect of that error
on the jury's determinations.FN2 Accordingly, appellant's
conviction should be reversed.
FN2. Because “[i]t is impossible to conclude
that the erroneous exclusion or inclusion of a juror had an impact
on the verdict actually reached” traditional harm analysis has not
been applied. george e. dix and robert o. dawson, 42 texas
practice § 35.47 at 472 (1995). In Bell v. State, 724 S.W.2d 780 (Tex.Crim.App.1986),
cert. denied, 479 U.S. 1046, 107 S.Ct. 910, 93 L.Ed.2d 860 (1987),
we explained the rules for determining harm in the context of
erroneous rulings on challenges for cause: If a trial court
erroneously overrules a defendant's challenge for cause, the
defendant may establish harm by showing: (1) exhaustion of his
peremptory challenges; (2) denial of a request for additional
peremptory challenges; and (3) the seating of a juror upon whom
the defendant would have exercised a peremptory challenge. East v.
State, 702 S.W.2d 606 (Tex.Cr.App.1985); White v. State, 629 S.W.2d
701 (Tex.Cr.App.1981), cert. denied, 456 U.S. 938, 102 S.Ct. 1995,
72 L.Ed.2d 457 (1982); Hernandez v. State, 563 S.W.2d 947 (Tex.Cr.App.1978);
Payton, supra. In non-capital murder cases, if the trial court
erroneously grants a State's challenge for cause and excludes a
qualified juror, the defendant may establish harm simply by
showing that the State exhausted all of its peremptory challenges.
In such a case the court has effectively given the State the
benefit of an additional peremptory challenge. Payton, supra. See
also Culley v. State, 505 S.W.2d 567 (Tex.Cr.App.1974); and Weaver
v. State, 476 S.W.2d 326 (Tex.Cr.App.1972). In capital murder
cases, if the trial court improperly sustains a State's challenge
for cause and excludes a qualified juror, over a defendant's
objection, reversible error arises regardless of whether the State
has exhausted its peremptory challenges. This is because
peremptory strikes are exercised after each prospective juror is
questioned, under Art. 35.13, V.A.C.C.P., as opposed to after the
entire panel is questioned in a non-capital case. Grijalva v.
State, 614 S.W.2d 420 (Tex.Cr.App.1981). See also Turner v. State,
635 S.W.2d 734 (Tex.Cr.App.1982).... When the trial court sua
sponte excludes a qualified juror, the situation must be
distinguished from a similar excusal that is prompted by the State.
Grijalva, supra, held that any State's unused peremptory strikes
remaining at the end of voir dire would not remove the harm of an
erroneous excusal of a qualified juror. This conclusion is based
on the notion that otherwise the State would receive three unfair
advantages over the defense: (1) hindsight in exercising
peremptory strikes that was denied to the defense; (2) the benefit
of striking last that is statutorily given to the defense by Art.
35.13, V.A.C.C.P.; and (3) the benefit of having the court strike,
on behalf of the State, a venireman on appeal after voir dire
error has been pronounced. But Grijalva is founded on the notion
that the State caused the improper excusal by issuing a challenge
for cause, and is therefore penalized because of the advantages it
would otherwise receive by holding a peremptory strike back. Where
the trial judge, not the State, is solely responsible for the
improper excusal, the justification for penalizing the State under
Grijalva disappears. It is entirely appropriate in such a case to
fall back on the rationale in Weaver, supra, Payton, supra, and
Culley, supra, and assess harm to the defendant on whether the
state had remaining peremptory strikes left at the close of the
voir dire. See also Zinger v. State, 932 S.W.2d 511 (Tex.Crim.App.1996)(holding
wrongful granting of State's challenge for cause reversible
error); Howard v. State, 941 S.W.2d 102 (Tex.Crim.App.1996)(opinion
on reh'g) (erroneous grant of State's challenge for cause
reversible error). I do not necessarily agree with this type of
“harm analysis,” see Anson v. State, 959 S.W.2d 203, 205-208 (Tex.Crim.App.
1997) (Meyers, J., concurring); Zinger, supra (Meyers, J.,
concurring), but it has been the law for a long time. And the
Court has held that the type of harm analysis applied to voir dire
error under Rule 81(b)(2) will continue to apply under the new
rule. Anson, supra (applying traditional voir dire harm analysis
without regard to change in harm analysis under Rule 44.2). With
these comments, I dissent.
