The opinion
Opinion issued July 22, 2014.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00493-CR
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RYAN MATTHEW STAIRHIME, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 177th District Court
Harris County, Texas
Trial Court Case No. 1387371
CONCURRING MEMORANDUM OPINION
I join in the Court’s rejection of Appellant’s first three issues. I also join in
its rejection of Appellant’s fourth issue based on our prior, controlling precedent:
Harrison v. State, 333 S.W.3d 810, 812 (Tex. App.—Houston [1st Dist.] 2010, pet.
ref’d).
While I agree with the holding in Harrison that an “affirmative statement of
‘no objection’ waives any error relating to that matter,” I would not read the phrase
“that matter” so broadly. I do not agree that the “matter” under consideration when
the trial court has just seated the jury is the entire voir dire process. Instead, the
issue at that time is whether the court has made a mistake in identifying the jurors
who will sit based on the parties’ respective jury strikes.
In Harrison, we broadly construed the phrase “that matter” to cover the
entire voir dire process when, after seating the jury, the court asked whether either
side had any objection to the seating of the jury, and the appellant stated that he
had none. Id. at 812. The appellant had already objected that he had not been
provided adequate time to conduct voir dire and had tendered the questions that he
would have asked. Id. We found the appellant’s statement that he had no objections
to the seating of the jury waived his earlier objection. Id. at 813. I disagree with
that analysis. At that moment in the trial, the attorneys are focused on examining
their strike sheets to ensure that the court has not accidentally seated a juror whom
the party had struck on the peremptory strike list, evaluating the other party’s
strikes, and analyzing the resulting composition of the jury.
In my view, the court’s question in Harrison was not sufficiently specific to
notify the appellant that the court wanted to hear objections not just on the narrow
issue immediately before it—the seating of the jury—but also on every issue that
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had occurred during the voir dire process. That process covers a multitude of
events that could result in objections, such as the court’s imposition of time
limitations and rulings on objections to the factual statements made by the lawyers
during voir dire, questions to the panel and individual venire members, challenges
for cause, and Batson issues.
I reach the same conclusion regarding the court’s question in this case.
Reasonable practitioners would not have interpreted the court’s inquiry to have
sought re-argument about every prior voir dire issue; those issues had been decided
and the only viable remedy would have been to dismiss the panel and conduct a
new voir dire. To construe the court’s question in front of the jury as reaching all
of those issues at that stage of the trial is, in my view, setting a trap for counsel.
Accordingly, I would conclude that the entire voir dire process was not the
“matter” waived; instead, only an objection to the seating of the panel was waived.
Nevertheless, we are bound by Harrison, and therefore, I respectfully concur
in the Court’s opinion.
Harvey Brown
Justice
Panel consists of Chief Justice Radack and Justices Higley and Brown.
Justice Brown, concurring in part.
Publish. TEX. R. APP. P. 47.2(b).
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