# Anson v. State > Court of Criminal Appeals of Texas · October 8, 1997 · 959 S.W.2d 203 URL: https://www.frixlaw.com/law-library/cases/9682966 ## Case - **Full name:** Bruce Lonnie ANSON, Appellant, v. the STATE of Texas - **Court:** Court of Criminal Appeals of Texas - **Decided:** October 8, 1997 - **Citations:** 959 S.W.2d 203; 1997 Tex. Crim. App. LEXIS 74; 1997 WL 616192 - **Precedential status:** Published - **Opinion:** Dissent by Overstreet - **Judges:** Keller, Meyers, Mansfield, Baird, Overstreet, Price - **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/9682966 ## How later opinions describe it (automated extraction) - applying traditional voir dire harm analysis without regard to change in harm analysis under Rule 44.2 ## Opinion text OVERSTREET, Judge, dissenting. Appellant was charged by indictment with the felony offense of aggravated sexual assault pursuant to V.T.C.A. Penal Code, § 22.021, alleged to have occurred on or about July 1, 1990. Before a visiting judge in a trial by jury, appellant was found guilty as charged in the indictment. On June 9, 1992, the jury assessed punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for eight (8) years. The court of appeals affirmed. Anson v. State, No. 14-92-00731-CR, 1995 WL 353455 (Tex.App.—Houston [14th DistJ, delivered June 8, 1995) (unpublished). We granted one of appellant’s questions for review to determine “whether the court of appeals erred in holding that the trial court did not err in precluding appellant from individually questioning three venire-members at the bench.” The majority assumes arguendo that the trial court erroneously prohibited appellant from asking proper questions of certain individual veniremembers, but nevertheless affirms because it concludes that appellant has failed to show harm resulting from such error. Anson v. State, 959 S.W.2d 203 (Tex.Cr.App.1997) (majority opinion). To this conclusion, I respectfully dissent. I. SUMMARY OF PERTINENT FACTS Appellant claims error, and the opinion of this court assumes arguendo that such claim is correct, in the trial court precluding him from individually questioning three particular veniremembers at the bench. He sought such questioning because during general voir dire, when the panel was informed that the case would involve allegations of aggravated sexual assault of a child, one veniremember *212 offered that she “had a similar situation in the family” which might tend to prejudice her against appellant. Appellant informed the veniremembers that they would be provided with the opportunity to speak privately at the bench about similar personal experiences and about matters which were too personal in nature to discuss comfortably in the presence of the venire panel and which could potentially preclude them from serving as a juror in this case. Ultimately, fifteen veniremembers expressed the need to speak privately with counsel at the bench. Though the trial court did some questioning of those panelists at the bench, and allowed appellant to ask some questions, it prohibited him from individually questioning three of them further on issues relating to sexual abuse. Appellant specifically objected to being precluded from asking such questions, and ultimately used peremptory strikes to exclude those three veniremembers. II. MAJORITY’S DISPOSITION The majority concludes that despite the error in preventing the above-discussed questioning of the three veniremembers, appellant failed to show harm in such preclusion. It cites our recent capital murder opinion in Janecka v. State, 937 S.W.2d 456, 470-71 (Tex.Cr.App.1996), cert. filed, April 29, 1997, for the proposition that harm must be shown by: 1) exhausting all peremptory challenges, 2) denial of a request for more such challenges, and 3) identifying an objectionable juror seated on the jury on whom he would have exercised a peremptory challenge had he had one remaining. Anson v. State, swpra, at 205-06. The majority appears to acknowledge that this method for showing harm has traditionally applied to “the erroneous denial of challenges for cause[.]” Id. As discussed above, appellant does not complain of a denial of a challenge for cause; but rather he complains of being denied the opportunity to question the three venire-members about sexual abuse to determine their fitness for jury service in this aggravated sexual assault case. However, Janecka, supra, in the context of death penalty capital murder individual voir dire, transferred that standard of showing harm in the erroneous denial of a challenge for cause to the erroneous denial of proper questioning of a venire-member. Now the majority in this case further transfers that standard to the non-capital group voir dire process of questioning venire-members, though it does indicate that “any error in the present case is limited to particular individual prospective jurors.” Anson v. State, at 205-06. Thus, the majority is now requiring, in a non-death penalty case where voir dire is done of the panel as a whole, a party who is erroneously prevented from properly questioning particular members of that panel to blindly exercise peremptory challenges on veniremembers and prevent them from serving on the jury in order to show harm from such erroneous denial of questioning. III. MY ANALYSIS . As I pointed out dissenting in Janecka , the problem with limiting proper voir dire questioning is that it deprives one of the opportunity to intelligently (based upon responses to legally proper questions) exercise peremptory challenges and challenges for cause during the jury selection process. Janecka v. State, 937 S.W.2d at 479 (Overstreet, J., dissenting). As the trial court questioned appellant’s attorney about why he wanted to call veniremembers to the bench and why jurors would be talking about personal experiences in the jury room, it indicated that counsel did not know absolutely whether they had personal experiences of themselves or their children being abused; whereupon counsel in-sightfully stated, “I absolutely want to know if that’s something that has happened in their background.” Yet this Court fallaciously continues to require one to blindly exercise peremptory challenges on veniremembers who are prevented from answering such legally permissible questions and providing legally permissible information in order to enforce the right to receive answers to such proper questions. Such requires the removal of veniremembers without receiving a response to proper questioning, where those responses might very well have shown the veniremembers to be acceptable and that the party would not have wanted to exercise a peremptory challenge to remove such venire- *213 members. And blindly exercising a peremptory challenge does not cure the error in denying questioning of a veniremember whom appellant would have deemed acceptable had he been allowed to answer the question — it certainly does not return the struck veniremember to the panel and allow for jury service. I also point out that based upon the differences in the procedures of jury selection in capital death penalty vs. non-death penalty trials, this type of error may involve different harmful effects. In death penalty trials, jury selection is done on an individual basis with individual questioning and peremptory and causal challenges being exercised one venire-member at a time. See Articles 35.13 and 35.17, V.A.C.C.P.; Bigby v. State, 892 S.W.2d 864, 879-81 (Tex.Cr.App.1994), cert. denied, 515 U.S. 1162 , 115 S.Ct. 2617 , 132 L.Ed.2d 860 (1995). However, in non-death penalty trials, the State and the defendant exercise their peremptory challenges on separate lists at the end of voir dire; thus the defendant does not know which veniremembers the State is exercising its peremptory challenges on. See Articles 35.25 and 35.26, V.A.C.C.P. In such non-death penalty situations, the prohibition of legally proper questioning of veniremembers certainly has an even more critical effect on decisions in utilizing the peremptory challenges, and the denial of information to be elicited from such proper questioning is even more harmful than in the ease of death penalty individual voir dire where the strikes are exercised one at a time. In this case, appellant used peremptory strikes on all three of the veniremembers-in-question, but the State also peremptorily struck two of them; thus appellant blindly used two peremptory strikes on two venire-members who would have been excluded by the State’s use of its peremptory strikes. Both parties’ intelligent exercise of their peremptory strikes would have been facilitated by allowing appellant to receive answers to the proper questions he sought to ask. TV. CONCLUSION Because a majority of this Court continues to encourage, enforce, and reward ignorance and lack of knowledge in the jury selection process, I respectfully dissent. BAIRD and PRICE, JJ., join. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9682966. Public record. Not legal advice.