Jones v. State

BAIRD, Judge,

dissenting.

Direct and controlling precedent from this Court mandates reversal when a trial judge erroneously grants a State’s challenge for cause in a capital case. Richardson v. State, 744 S.W.2d 65 (Tex.Cr.App.1987); and, Bell v. State, 724 S.W.2d 780 (Tex.Cr.App.1986). However, the majority ignores this clear mandate and, in an act of blatant result-oriented jurisprudence, contorts Tex.R.App. P. § 44.2 to hold implicitly that there is no constitutional right to an impartial jury and to hold explicitly that a criminal defendant does not have a substantial right to a jury selected pursuant to the legislative scheme prescribed by Tex.Code Crim. Proc. Ann. chapter 35. 1 Part I of this opinion discusses why the error herein was constitutional and Part II offers an alternative discussion of why a defendant has a substantial right to a jury selected pursuant to the scheme established by the Legislature.

I.

A.

The most valuable right guaranteed by our Constitution is the right to trial by an impartial jury. U.S. Const, amend. VI. The value of this right depends upon the impartiality of the jury. Juror qualification is the province of the Legislature. Tex. Const, art. XVI, § 19. 2 To discharge this constitutional man *396 date, the Legislature has enacted legislation prescribing juror qualifications and providing challenges for cause and peremptory strikes. See generally, Tex.Code Crim. Proc.. Ann. Chapter 35. A jury selected pursuant to this legislative scheme constitutes an impartial jury under the Sixth Amendment.

However, this constitutionally mandated scheme was breached when the trial judge granted the State’s challenge for cause to veniremember Snyder. Because the obvious purpose of the legislative scheme is to ensure an impartial jury, a Sixth Amendment right, the harm analysis for an error which results in a breach of the scheme must be conducted under the constitutional standard of Tex. R.App. P. 44.2(a).

B.

Additionally, by subverting Tex.Code Crim. Proc. Ann. art. 35.16(b)(3), the trial judge violated appellant’s due process rights as mandated by the Fourteenth Amendment to the United States Constitution and appellant’s due course of law right required by Article 1 § 19 of the Texas Constitution. Due process is the most comprehensive and least specific of the liberties protected by the Constitutions. See Rochin v. California, 342 U.S. 165 , 72 S.Ct. 205 , 96 L.Ed. 183 (1952). It is based on fundamental fairness and brings to the individual States the requirement that those States respect beliefs that are “implicit in the concept of ordered liberty.” See Palko v. Connecticut, 302 U.S. 319, 325 , 58 S.Ct. 149, 152 , 82 L.Ed. 288 (1937). The instant ease is a capital case; a heightened need for reliability in all processes is required because of the qualitative difference between death and all other punishments. See Woodson v. North Carolina, 428 U.S. 280 , 96 S.Ct. 2978 , 49 L.Ed.2d 944 (1976). With this heightened need for reliability, the Fourteenth Amendment Due Process issue raised by a trial judged errantly granting a State’s challenge for cause in a capital case must be examined.

The United States Supreme Court has declared, in criminal cases, “certainly one of the basic purposes of the Due Process Clause has always been to protect a person against having the Government impose burdens upon him except in accordance with the valid laws of the land.” Giaccio v. Pennsylvania, 382 U.S. 399 , 86 S.Ct. 518 , 15 L.Ed.2d 447 (1966). The Fifth Circuit has recognized that “public officials violate substantive due process rights if they act arbitrarily or capriciously.” Fowler v. Smith, 68 F.3d 124 (5th Cir.1995). 3

The Texas legislature has specifically delineated the requirements for a valid challenge for cause. The trial judge, in the instant case, violated this legislative mandate in granting the State’s challenge for cause to veniremember Snyder. By failing to follow the non-discretionary legislative mandate in accepting challenges for cause, the trial court violated due process. 4 A trial court may not ignore a non-discretionary law in a critical setting like jury selection for a capital murder trial and still comport with the heightened expectation of fundamental fairness required by the Due Process Clause of the Fourteenth Amendment and Article 1 § 19 of the Texas Constitution. 5

C.

Having determined the error is of a constitutional magnitude, a harm analysis review *397 under Tex.R.App. P. § 44.2(a) requires a determination “beyond a reasonable doubt that the error did not contribute to the conviction or punishment.” I take guidance in determining the applicability of harmless error review from Holloway v. Arkansas, 435 U.S. 475 , 98 S.Ct. 1178 , 55 L.Ed.2d 426 (1978). Although the instant case and Holloway revolve around different issues, the same principle of analysis applies. In Holloway, the Supreme Court stated:

... In the normal case where a harmless-error rule is applied, the error occurs at trial and its scope is readily identifiable. Accordingly, the reviewing court can undertake with some confidence its relatively narrow task of assessing the likelihood that the error materially affected the deliberations of the jury... .But in a case of joint representation of conflicting interests the evil — it bears repeating — is in what the advocate finds himself compelled to refrain from doing.... It may be possible in some cases to identify from the record the prejudices resulting from an attorney’s failure to undertake certain trial tasks, but even with a record of the sentencing hearing available it would be difficult to judge intelligently the impact of a conflict on the attorney’s representation of a client. And to assess the impact of a conflict of interests on the attorney’s options, tactics, and decisions in plea negotiations would be virtually impossible. Thus, an inquiry into a claim of harmless error here would require, unlike most cases, unguided speculation. (emphasis in the originai)( internal citations omitted).

Id., 435 U.S. at 491 , 98 S.Ct. at 1182 .

This Court held similarly in Warmowski v. State, 853 S.W.2d 575, 578 (Tex.Cr.App.1993):

The point is well taken that if the nature of an error is such that the record will not provide a basis for estimating its contribution to conviction or punishment, it does not matter whether we declare the error subject to a harm analysis or not — the result will invariably be the same. As beneficiary of the error, the State has the burden to demonstrate harmlessness. Arnold v. State, 786 S.W.2d 295, at 298 (Tex. Cr.App.1990). On a record from which the likelihood of harm cannot meaningfully be estimated, the State will be unable to satisfy its burden.

This Court cannot hold the instant error was harmless without engaging in “unguided speculation.” No judge on this Court can produce a clear and substantiated view of how venireperson Snyder would have assessed the evidence or voted on the punishment issues in appellant’s capital trial. 6 The lack of opportunity to assess harm arising from this error is inherent in the error itself; no one can say with assurance what might have happened had veniremember Snyder not been improperly excused. This error is an error of constitutional magnitude, that involves the framework of the trial and defies harmless error analysis. 7 The law requires the conviction be reversed and the case remanded to the trial court.

II.

A.

The majority declares this error is not “of constitutional dimension,” and attempts to perform an analysis of this error under Tex. R.App. P. 44.2(b). Ante at 391. They begin their analysis by drawing a parallel between Tex.R.App. P. 44.2(b) and the Federal Rules of Criminal Procedure 52(a). Ante at 392. The majority attempts to analyze pertinent federal and state law and its applicability to the case sub judice. Ante at 392. The findings of other jurisdictions’ criminal law are reinforced by looking to Texas civil law regarding the question of the instant case. Ante at 392. The majority ends by incor *398 rectly referring to Lawson v. State, 67 Tex. Cr. 24, 148 S.W. 587 (1912), 8 and to Payton v. State, 572 S.W.2d 677 (Tex.Cr.App.1978). Ante at 393.

Neither Lawson , nor Payton , have bearing on the instant issue. Lawson is an ancient case from 1912 that has been overruled and Payton , decided in 1978, gives a rule for non-capital cases that does not apply to capital cases. 9 By 1986, this court had adopted the following rule in capital cases: In capital murder eases, if the trial court improperly sustains a State’s challenge for cause and excludes a qualified juror, over a defendant’s objection, reversible error arises regardless of whether the State has exhausted its peremptory challenges. This is because peremptory strikes are exercised after each prospective juror is questioned, under Tex.Code Crim. Proc. Ann. art. 35.13, as opposed to after the entire panel is questioned in a non-capital case. Grijalva v. State, 614 S.W.2d 420 (Tex.Cr.App.1981). See also Turner v. State, 635 S.W.2d 734 (Tex.Cr.App.1982); and, Bell v. State, 724 S.W.2d 780, 795 (Tex. Cr.App.1986). A clear and concise reasoning for this holding can be found in Richardson v. State, 744 S.W.2d 65, 69-70 (Tex.Cr.App.1987):

In capital cases, however, it is ordinarily immaterial that the State had strikes remaining at the end of the voir dire examination. If the trial court erroneously sustains a State’s challenge for cause over defense objection during individual voir dire in a capital case, this has the immediate effect of giving the State an additional peremptory strike. Grijalva v. State, 614 S.W.2d 420 (Tex.Cr.App.1981). As stated in Grijalva, supra at 424:

“The manner of exercising peremptory challenges is explicitly differentiated in Arts. 35.13 and 35.25, V.A.C.C.P. The procedure followed in Chambers [v. State, 568 S.W.2d 313 (Tex.Cr.App.1978) ] and this case is stated in Art. 35.13, supra: ‘A juror in a capital case in which the state has made it known it will seek the death penalty, held to be qualified, shall be passed for acceptance or challenge first to the state and then to the defendant. Challenges to jurors are either peremptory or for cause.’ ” On the other hand, in non-capital eases, such as those upon which Chambers relied, the procedure is quite different, as provided in Art. 35.25, supra:

“‘In non-capital cases and in capital eases in which the State’s attorney has announced that he will not qualify the jury for, or seek the death penalty, the party desiring to challenge any juror peremptorily shall strike the name of such juror from the list furnished him by the clerk.’ ”

To allow the State to render harmless the improper challenge for cause and exeu-sal of a venire member by the simple expedient of not using all of the State’s peremptory challenges would be, as stated in Grijalva, supra at 424^125:

... corruption of the peremptory strike practice that violates the terms of Art. 35.13, supra, and gives an unfair advantage to the State in the jury selection process.

First, to allow the State to exercise its peremptory challenges in a capital case •after conclusion of the voir dire examination gives it the benefit of making its judgments with a perspective of the entire panel, a perspective that is not given the defendant.

Second, giving such a privilege to the State allows it to withhold its strikes until after the defendant has exercised his strikes, even though Art. 35.13, supra, explicitly states that the qualified venire man shall be passed first to the state and then to the defendant. The statute would give the benefit to the defendant in instances *399 where both sides might desire to strike the same venire man. Allowing the State to wait until the end of the selection process would transfer that benefit to the State.

Third, to allow retrospective exercise of peremptory challenges on appeal gives the State even greater advantages. When used on appeal the State effectively postpones exercise of its strikes until error has been found, and then with the benefit of the ruling of this Court as its guide the State can maximize the accuracy of the strikes not used at trial. In actuality this Court not only counsels the State, but actually exercises the strike for the State. In effect a peremptory strike against a prospective juror is transformed into a peremptory strike against a ground of error. (Emphasis in original).

The majority provides no explanation, whatsoever, why the above reasoning does not apply to appellant today.

B.

Because they were decided before the promulgation of Rule 44.2, neither Bell, supra, nor Richardson, supra, mention whether a criminal defendant has a substantial right to a jury selected pursuant to the legislative scheme prescribed Tex.Code Crim. Proc. Ann. chapter 35. But the question clearly answers itself. Certainly, all criminal defendants have a statutory right to a jury empaneled by the scheme prescribed by the Code of Criminal Procedure. To hold otherwise is to judicially repeal and wholly circumvent the legislative enactments that prescribe challenges for cause and the jury selection process in capital trials.

Moreover, both Bell , and Richardson , rely on Grijalva v. State, 614 S.W.2d 420 (Tex.Cr. App.1981), et. al., to declare that in a capital case, a trial judge errantly sustaining a State’s challenge for cause commits reversible error. By following stare decisis and reversing capital cases which contain this error, this Court has impliedly recognized that an accused has a substantial right in the trial judge exclusively sustaining challenges for cause proscribed by statute. If this substantial right did not exist, there would be no reason for the Bell/Richardson rule.

By standards of stare decisis, analysis of precedent, and logic, this court should not ignore its previous decisions and fail to hold that an accused has a substantial right in the trial court following legislative mandate during the jury selection process. To refuse to find such a substantial right would circumvent the legislative act that prescribed challenges for cause and jury selection process in capital trials.

C.

Moreover, the majority’s interpretation of Rule 44.2(b) violates our rule making authority. The Legislature has specifically prohibited this Court from such actions by enacting the following statute:

(a) The court of criminal appeals is granted rulemaking power to promulgate rules of posttrial, appellate, and review procedure in criminal cases except that its rules may not abridge, enlarge, or modify the substantive rights of a litigant.

Tex. Gov’t Code Ann. § 22.108(a).

In Flowers v. State, 935 S.W.2d 131 (Tex.Cr.App.1996), this Court held that a substantial right, the right to appeal an involuntary plea, could not be barred by a new rule of appellate procedure. The same reasoning should be applied today; prior to today’s majority opinion, capital defendants had a substantial right to appeal an error committed by the trial judge in errantly granting a challenge for cause by the State and to obtain a reversal of their convictions. -The new rule, 44.2, should not be interpreted to deny a defendant reversal of his conviction. Such an interpretation abridges the defendant’s rights and thereby, violates our rule making authority.

D.

A remaining problem with today’s opinion is requiring an accused to show that a partial jury heard his case before this Court will reverse for error in a trial judge improperly sustaining a State’s challenge for cause. This he can not do. 10

*400 Texas Rules of Criminal Evidence § 606(b) [now combined with the Texas Rules of Civil Evidence and renamed Tex. Rules of Evidence] bars jurors from testifying “as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent or dissent from the verdict or indictment or concerning his mental processes in connection therewith ... ”. 11 No juror can testify regarding a bias or partiality affecting deliberations. No bias or partiality is revealed by jurors passively absorbing evidence as it is offered in the courtroom. A jury, once assembled, is allowed no opportunity to reveal any partiality. An accused can neither impeach a jury for partiality after the verdict has been delivered nor can he approach jurors after voir dire and before the trial has concluded.

An accused has no power to seek redress of this error once it occurs. Once voir dire has ended, the accused can not obtain information necessary to submit an allegation to a reviewing court that he was not tried by an impartial jury. Today’s result-oriented holding sets a crippling and impossible standard for reviewing a trial judge’s error in sustaining a State’s challenge for cause in a capital case.

CONCLUSION

The effect of the majority opinion is to permit the State to request and the trial judges to grant unfounded challenges for cause thereby trampling the defendant’s Constitutional rights to an impartial jury, due process of law and due course of law, and denying the defendant his substantial right to appeal and receive a reversal upon a breach of the legislative scheme for jury selection.

For all of the reasons stated above, I dissent.

. Tex.R.App. P. 44.2, Reversible Error in Criminal Cases

(a) Constitutional error. If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.

(b) Other errors. Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.

. Article XVI, § 19 of the Texas Constitution provides: "The Legislature shall prescribe by law the qualifications of grand and petit jurors; pro *396 vided Aat neiAer Ae right nor Ae duty to serve on grand and petit juries shall be denied or abridged by reason of sex."

. This case deals involves the wrongful discharge of a public employee and is not offered as direct criminal precedent, only to show this concept is a recognized part of due process.

. This error meets Ae fundamental fairness aspect of Ae Fourteenth Amendment because any error in creating Ae jury encompasses each moment that jury hears evidence or deliberates. Error in composing Ae jury infects the structure of Ae trial by exposing all procedure and evidence to an incorrectly selected jury.

.The majority recognizes the issue as 'did this error deny the defendant a Sixth Amendment right to trial by an impartial jury?’ The majority answers negatively and moves on while ignoring the Fourteenth Amendment aspects of the question. The majority also relies on U.S. v. Prati, 861 F.2d 82 (5th Cir.1988) in answering the 6th Amendment question. Ante at 391. Prati is not applicable because it is a non-capital case that uses a harmless-error analysis that Ae Court notes is not to he used in capital cases. Prati at 87 , footnote 6.

. Here I draw attention to the statutory requirement of unanimity before the death penalty can be imposed. Our law requires that all twelve jurors answer the special issues in favor of death. We cannot assume because twelve others answered in favor of death that Snyder too would have answered as such.

. See Twine v. State, 970 S.W.2d. 18 , (Tex.Cr. App.1998)(BAIRD, J., dissenting), for another discussion of why harmless-error analysis cannot be undertaken in reference to an error whose consequence is not captured by the record. In Twine , this court attempted a harm analysis based on the trial judge’s denying defense the opportunity to make a timely opening statement.

. Lawson has never been cited by any court as authority.

. Interestingly, the majority refers to United States v. Cornell as guiding established precedent for their holding. Ante at 392. Cornell is a precursor to Witherspoon/Witt error, and therefore, totally inapplicable to the instant case. Chief Justice Story’s rationale in Cornell for excluding the prospective Quaker venire members (because "Quakers entertain peculiar opinions on the subject of capital punishment,”) would certainly be unacceptable today under the law. Id., 25 F.Cas. at 655-56.

. An exhaustive search of this court's published cases fails to identify a single instance of a case *400 being reversed due to a partial jury. There have been numerous instances of unqualified or disqualified jurors hearing cases and causing reversals, but not a single case has hinged upon a partial jury as the majority now requires for reversal. Ante at 394.

. For an excellent explanation of the utility and necessity of this bar, see Tanner v. United States, 483 U.S. 107 , 107 S.Ct. 2739 , 97 L.Ed.2d 90 (1987); McDonald v. Pless, 238 U.S. 264 , 35 S.Ct. 783 , 59 L.Ed. 1300 (1915); or, Buentello v. State, 826 S.W.2d 610 (Tex.Cr.App.1992).