Anson v. State

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

KELLER, Judge.

Appellant was convicted of aggravated sexual assault of a child and sentenced to eight years confinement. The Court of Appeals affirmed the conviction. Anson v. State, No. 14-92-00731-CR, 1995 WL 353455 (Tex.App.—Houston [14th Dist.], delivered June 8, 1995)(unpublished). Appellant contends that the Court of Appeals erred in holding that the trial court did not err in preventing appellant from individually questioning three *204 prospective jurors at the bench. We will affirm.

1. Facts

The record reflects that, after the venire was informed that the case would involve allegations of aggravated sexual assault of a child, one prospective juror offered that she “had a similar situation in the family” which might tend to prejudice her against appellant. Defense counsel informed the venire that he would provide them with an opportunity to speak privately at the bench about similar personal experiences that could potentially preclude them from participation. At the end of defense counsel’s voir dire, fifteen panelists responded affirmatively when asked whether there was anything of a personal nature that they wanted to discuss at the bench. The record reflects that, during the trial judge’s private questioning of these panelists, defense counsel was prohibited from individually questioning three of them further on the issues discussed. 1 Subsequently, defense counsel used peremptory strikes to exclude them. He did not request additional peremptory challenges.

Relying upon Ratliff v. State, 690 S.W.2d 597, 599-600 (Tex.Crim.App.1985), the Court of Appeals determined that the trial court’s action did not constitute reversible error because none of the three prospective jurors complained of served on the jury. The Court of Appeals also determined that further questioning by defense counsel would have been repetitious in light of the trial judge’s questioning and the prospective jurors’ responses.

2. Analysis

Appellant contends that the trial judge erred in prohibiting questioning and that the Court of Appeals erred in relying upon Ratliff because Ratliff involved time limits rather than subject matter limitations on questioning. Assuming arguendo that the trial court erroneously prohibited appellant from asking proper questions of certain individual prospective jurors, appellant’s claim must nevertheless fail. We have recently recognized that the harm analysis we have traditionally applied to the erroneous denial of a defendant’s challenge for cause also applies to the erroneous prohibition of proper questioning of individual prospective jurors. Janecka v. State, 937 S.W.2d 456 , 470-471 & 471 n. 9 (Tex.Crim.App.1996). For the erroneous denial of challenges for cause, a defendant is harmed only if (1) he exhausts all of his peremptory challenges, (2) he requests more challenges, (3) his request is denied, and (4) he identifies an objectionable person seated on the jury on whom he would have exercised a peremptory challenge. Narvaiz v. State, 840 S.W.2d 415, 427 (Tex.Crim.App.1992), ce rt. denied, 507 U.S. 975 , 113 S.Ct. 1422 , 122 L.Ed.2d 791 (1993). 2 The record in the present ease shows that appellant used all of his peremptory challenges, including striking all the individual prospective jurors of which he complains, but made no request for additional challenges. Hence, under Ja-necka, appellant has suffered no harm from the trial court’s refusal to permit questioning of the individual prospective jurors involved. While Janecka is a capital prosecution, and the present case is a noncapital one, we see no reason to distinguish between the two on the present issue. As in Janecka , any error in the present case is limited to particular individual prospective jurors. 3

*205 The judgment of the Court of Appeals is affirmed.

MEYERS and MANSFIELD, JJ., concur with opinion.

BAIRD, J., dissents in which OVERSTREET, J., joins.

OVERSTREET, J., dissents in which BAIRD and PRICE, JJ., join.

. The trial judge permitted appellant to ask additional questions of some of these prospective jurors during this time.

. This harm analysis has also been characterized as a preservation of error analysis. See Green v. State, 934 S.W.2d 92, 105 (Tex.Crim.App.1996). We note that the harm analysis is somewhat different when additional peremptory strikes are granted but multiple challenges for cause are involved. See Mason v. State, 905 S.W.2d 570, 578 (Tex.Crim.App.1995), cert. denied, — U.S. -, 116 S.Ct. 717 , 133 L.Ed.2d 670 (1996).

.In his concurring opinion, Judge Meyers contends that Janecka’s harm analysis ignores the harmless error standards contained in the Texas Rules of Appellate Procedure. We disagree. It is true Janecka does not mention Rule 81(b)(2), and our cases have often phrased the standard as requiring an appellant to show harm. Nevertheless, we find that the standard applied in Janecka is simply a specific application of former Rule 81(b)(2) to a recurring fact situation found in voir dire. If an appellant doesn’t meet the Janec-ka requirements, then the error is harmless beyond a reasonable doubt.