Opinion

Butler v. State

  • 830 S.W.2d 125
  • 1992 Tex. Crim. App. LEXIS 116
  • 1992 WL 90540
Court
Court of Criminal Appeals of Texas
Filed
May 6, 1992
Status
Published
Author
Clinton
On the bench
Miller, Clinton, Overstreet
Cited by
48 cases

noting that the trial court must excuse an absolutely disqualified venireperson without regard to trial court discretion applicable to excusing an otherwise qualified venireperson on other grounds

How later courts described this case

  • noting that the trial court must excuse an absolutely disqualified venireperson without regard to trial court discretion applicable to excusing an otherwise qualified venireperson on other grounds
  • arguing that differences between the specific terms of article 35.03 and the general terms of Gov't Code section 62.110 render the latter inapplicable to jury selection in criminal trials
  • noting that a trial court "should not sua sponte excuse a potential juror except on grounds of absolute disqualification”
  • declaring that Article 35.16 is an exclusive list

Written by the judges who cited it.

The opinion

CLINTON, Judge,

dissenting.

In saying that “there is no indication that the Legislature intended to limit the trial judge’s power of excusal solely to the period prior to the voir dire questioning of the panel ...,” majority opinion, at 131, the majority overlooks the chronological structure in Chapter Thirtyfive of the Code of Criminal Procedure. 1

First, after an announcement of ready, of course, names of those summoned as jurors are called. Article 35.01. Then those who respond are sworn to “make true answers to such questions as may be propounded to you ... touching on your service and qualifications as a juror[.]” Article 35.02. Thus prospective venire per *135 sons have been identified and cautioned to be truthful concerning such matters.

“[T]he court shall THEN hear and determine excuses offered for not serving as a juror, and if the court deems the excuse sufficient, the court shall discharge the juror or postpone the juror’s service to a date specified by the court.” Article 35.03. 2

The Legislature obviously contemplated that this process for screening out jurors with sufficient excuses is to be completed before the court moves on to other matters relating to formation of the jury, including hearing any challenge to the array pursuant to Articles 35.05 through 35.09. The court shall proceed “to try the qualifications of those [remaining] jurors,” Article 35.10, subject to a “shuffle” under Article 35.11.

Thereafter, the court tests the statutory “qualification” of prospective jurors, Article 35.12, and those who pass the test are then subjected to voir dire examination by the respective parties for purposes of making a peremptory challenge or challenge for cause under Articles 35.14 and 35.16, respectively.

When voir dire is completed the parties strike their lists and deliver them to the clerk; the clerk calls off the first twelve names (six in county court) that have not been stricken. Those called constitute the jury to try the case.

Nowhere in the Code of Criminal Procedure has the Legislature authorized what the majority legislates today — that which manifestly is rife with and readily susceptible to much mischief.

Therefore, I respectfully dissent.

OVERSTREET, J., joins.

. All articles referred to are in the Vernon’s Annotated Texas Code of Criminal Procedure (V.A.C.C.P.). Those mentioned relate to jury selection in a noncapital case.

. All emphasis here and throughout this opinion is mine unless otherwise indicated.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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