# Butler v. State

> Court of Criminal Appeals of Texas · May 6, 1992 · 830 S.W.2d 125

URL: https://www.frixlaw.com/law-library/cases/9679730

## Case

- **Full name:** David Lee BUTLER, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** May 6, 1992
- **Citations:** 830 S.W.2d 125; 1992 Tex. Crim. App. LEXIS 116; 1992 WL 90540
- **Precedential status:** Published
- **Opinion:** Dissent by Clinton
- **Judges:** Miller, Clinton, Overstreet
- **Cited by:** 48 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9679730

## How later opinions describe it (automated extraction)

- 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
- noting that a trial court "should not sua sponte excuse a potential juror except on grounds of absolute disqualification”

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9679730. Public record. Not legal advice.