holding, in death penalty case, that State was given unfair advantage in the jury selection process when the trial court allowed it to exercise peremptory strikes after entire panel was questioned
How later courts described this case
- holding, in death penalty case, that State was given unfair advantage in the jury selection process when the trial court allowed it to exercise peremptory strikes after entire panel was questioned
- rejecting argument as matter of state law because allowing retrospective exercise of peremptory challenges on appeal transforms "a peremptory strike against a prospective juror" into "a peremptory strike against a ground of error"
- rejecting the notion that an erroneously granted challenge for cause on the State’s motion is harmless if the State failed to exercise all of its peremptory challenges
- re *665 jecting argument as matter of state law because allowing retrospective exercise of peremptory challenges on appeal transforms “a peremptory strike against a prospective juror” into “a peremptory strike against a ground of error”
Written by the judges who cited it.
Distinguished
Distinguished by Richardson v. State, 1987 Tex. Crim. App. LEXIS 686 (1987)
We find that Grijalva, supra, is distinguishable from this case since the trial judge excused the venireman sua sponte rather than as the result of a challenge for cause by the State, thus depriving the State of the orderly opportunity to challenge peremptorily.
Distinguished by Montoya v. State, 1987 Tex. Crim. App. LEXIS 681 (1987)
On the facts, Grijalva, supra, is distinguishable from the instant case.
The opinion
DISSENTING OPINION TO DENIAL OF STATE’S MOTION FOR REHEARING WITHOUT WRITTEN OPINION
McCORMICK, Judge.
The majority denies rehearing in this cause, thereby reversing a conviction of capital murder. Relying on Adams v. Texas, 448 U.S. 38 , 100 S.Ct. 2521 , 64 L.Ed.2d 581 (1980), it was found that a juror was improperly excused under V.T.C.A. Penal Code, Section 12.31(b). Although in agree *426 ment with that ruling, I find myself confounded by the Court anxiously overruling Chambers v. State, 568 S.W.2d 313 (Tex.Cr.App.1978). 1 Because of this departure from established precedence and a misconstruction of the relevant statutes, I dissent.
At first blush, the majority opinion appears persuasive. However, the majority has erroneously overruled sound precedence. Article 35.17(2), V.A.C.C.P., provides that, on demand, veniremen shall be examined individually and apart from the* panel. There is nothing in this statute itself, however, which requires that challenges be made after examination of each venireman and prior to the examination of the next venireman. This statute merely provides a scheme whereby the jury panel is prohibited from hearing the questions and answers of each individual venireman.
Article 35.13, V.A.C.C.P., provides that, in capital cases, a venireman shall be passed for acceptance or challenge first to the State and then to the defendant. The statute itself does not require, however, that strikes be made immediately upon completion of the examination of each individual venireman. In other words, there is nothing in the statute which would prohibit separate voir dire of each member of the entire jury panel prior to the time the State is put to the election of making its challenges before the defendant.
Article 35.25, V.A.C.C.P., requires a defendant, in non-capital cases, to make his peremptory strikes without knowledge of whom the State will peremptorily strike. Under 35.13, supra, the capital defendant exercises his strikes after the State has made its “strike” decision. Under this interpretation, the fairness trilogy that the majority argues is rendered moot. Contrary to this Court’s opinion, it is not a corruption of the peremptory strike practice and does not violate the terms of Article 35.13, supra. Neither does it give “unfair” advantage to the State in the jury selection process. It is a means by which Witherspoon v. United States, 391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968), error may be held harmless and render unnecessary retrials or release of convicted murderers.
At least three other jurisdictions have reached the same result at Chambers . See Alderman v. State, 241 Ga. 496 , 246 S.E.2d 642 (1978), cert. denied, 439 U.S. 991 , 99 S.Ct. 593 , 58 L.Ed.2d 666 ; Ruffin v. State, 243 Ga. 95 , 252 S.E.2d 472 (1979), cert. denied, 444 U.S. 995 , 100 S.Ct. 530 , 62 L.Ed.2d 475 ; Jones v. State, 243 Ga. 820 , 256 S.E.2d 907 (1979), cert. denied, 444 U.S. 957 , 100 S.Ct. 437 , 62 L.Ed.2d 329 (1980); State v. George, 346 So.2d 694 (La.1977); Gall v. Commonwealth, 607 S.W.2d 97 (Ky.1980).
The State’s motion for rehearing should be granted, and, based on Chambers , the judgment should be affirmed.
. Chambers would allow this conviction to stand because the State had not used all of its peremptory strikes.