vacating judgment of reversal and remanding for court of appeals to decide whether the jury shuffle error “can be analyzed in terms of harm and, if so, whether any harm occurred.”
How later courts described this case
- vacating judgment of reversal and remanding for court of appeals to decide whether the jury shuffle error “can be analyzed in terms of harm and, if so, whether any harm occurred.”
- observing that Article 35.23 concerns “rules regarding adjournment and separation of the jury after being sworn”
Written by the judges who cited it.
The opinion
BAIRD, Judge,
dissenting.
The Court of Appeals held the trial judge committed reversible error in conducting a jury shuffle after the conclusion of voir dire. Roberts v. State, (Cause no. 12-94-205-CR, delivered August 29, 1997)(Not designated for publication.). This Court now vacates that decision and remands for a harm analysis. The majority bases this action on Cain v. State, 947 S.W.2d 262 (Tex.Cr.App.1997). Believing the majority reads Cain far too broadly, I dissent.
The Cain Court held failure to admonish a non-deportable citizen as required by Tex. Code Crim. Proc. Ann. art. 26.13(a)(4) was subject to a harm analysis. Cain, 947 S.W.2d at 264 . In reaching that holding, the Court recognized certain errors defy analysis by harmless error standards. Ibid. This case involves such an error.
Historically, we have recognized that jury shuffle error is not subject to a harm analysis because there is no concrete data in the record from which an appellate court can meaningfully gauge the effect of the error. Roberts v. State, 784 S.W.2d 430, 435 (Tex.Cr.App.1990). This is certainly true in the instant case where the Court of Appeals noted: “The persons seated in the last two seats, which may have been questioned less than the other panel members, were shuffled into the strike zone and Appellant had to exercise a strike to remove one of them from the panel.” Slip op. pg. 4. The record does not and, indeed, cannot show what would have occurred or how appellant would have exercised his peremptory strikes had the trial judge not erred in shuffling the panel after voir dire.
Instead of remanding this case to the Court of Appeals to perform a useless act, the majority should follow our own precedent, as the Court of Appeals did, and affirm its judgment.
OVERSTREET, J., joins.