# Jones v. State

> Court of Criminal Appeals of Texas · September 16, 1998 · 982 S.W.2d 386

URL: https://www.frixlaw.com/law-library/cases/9776110

## Case

- **Full name:** George Alarick JONES, Appellant, v. the STATE of Texas
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** September 16, 1998
- **Citations:** 982 S.W.2d 386; 1998 Tex. Crim. App. LEXIS 113; 1998 WL 618992
- **Precedential status:** Published
- **Opinion:** Dissent by Meyers
- **Judges:** Mansfield, McCormick, Keller, Holland, Womack, Price, Baird, Meyers, Overstreet
- **Cited by:** 414 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Disagreed with by Johnson v. State, 2001 Tex. Crim. App. LEXIS 23 (2001).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9776110

## How later opinions describe it (automated extraction)

- concluding that in the direct review of a capital murder conviction, the trial court's error in improperly sustaining the State's challenge for cause was not reversible because the defendant could not show he was denied a trial by a fair and impartial jury
- holding that "a defendant has no right that any particular individual serve on the jury. The defendant's only substantial right is that the jurors who do serve be qualified. The defendant's rights go to those who serve, not to those who are excused."
- explaining that exclusion of a juror because of general opposition to the death penalty amounts to a constitutional violation, and that exclusion of jurors for impermissible reasons like race, sex, or ethnicity may violate constitutional provisions
- stating that jurors need not be completely impartial and free of any trace of skepticism toward any category of witness and that jurors cannot be expected to completely remove their own experiences, beliefs, and values
- stating that before a venire member can be properly challenged under article 35.16(b)(3), the law must be explained to him and he must be asked whether he can follow that law regardless of his personal views

## Opinion text

MEYERS, Judge,
dissenting.
I again find myself unenlightened by a majority opinion of this Court. Effective September 1, 1997, the Court promulgated a new rule for assessing harm arising from non-constitutional trial error. Tex.R.App. PROC. 44.2(b). It is now over a year past its inception and I have no better understanding of how to apply this rule than when it was promulgated.
I.
Texas Rule of Appellate Procedure 44.2(b), provides in part that as to non-constitutional error, “[a]ny other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.” The first case to apply this portion of the new rule was King v. State, 953 S.W.2d 266, 271 (Tex.Crim. App.1997). There, the Court said “[a] substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict[,]” citing Kotteakos v. U.S., 328 U.S. 750, 776 , 66 S.Ct. 1239 , 90 L.Ed. 1557 (1946). The Court concluded, in light of the overwhelming evidence of future dangerousness that was properly admitted, any error in admitting certain other evidence “did not have a substantial or injurious influence on the jury’s decision.” King, 953 S.W.2d at 273 . More recently, in Johnson v. State, 967 S.W.2d 410 (Tex.Crim. App.1998), the Court concluded there was harm in the admission of certain evidence. We stated the test for assessing harm for nonconstitutional error: “[a] criminal conviction should not be overturned for non-constitutional error if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury or had but a slight effect.” Id. at 417 .
And so it would seem that the Court had established the test under 44.2(b) as whether we can say with “fair assurance” that the error “did not influence the jury or had but a slight effect.” But this analysis does not *401 appear in the majority opinion today. Today, the majority’s conclusion that the error is harmless is based in part on “how the federal courts” and other jurisdictions have “treated such errors.” Majority opinion at 391-392. A reading of these cases fails to reveal the applicable or controlling rule for assessing harm. Further, it is not even clear from some of these cases whether the question was one of harm or one of alleged constitutional error. For instance, in United States v. Prati, 861 F.2d 82, 87 (5th Cir.1988), the Court phrased the issue presented as whether the defendant’s conviction “should be reversed because the trial judge erred in granting, over the defendant’s objection, the government’s challenge for cause of a prospective juror from the venire.” In concluding “this is not a ground for reversing the defendant’s convictions[,]” the Fifth Circuit relied on Ross v. Oklahoma, 487 U.S. 81 , 108 S.Ct. 2273 , 101 L.Ed.2d 80 (1988). There, the high Court addressed whether the erroneous grant of a State’s challenge for cause violated the petitioner’s “Sixth and Fourteenth Amendment right to an impartial jury, and his Fourteenth Amendment right to due process.” Id. at 2277, 108 S.Ct. 2273 . This is far from the question presented in this case which already presumes we are not dealing with constitutional error. 1
Which leads to the next analytical problem in the majority’s opinion. The Court’s conclusion that the error is harmless is also based upon reasoning that no “substantial right” of the defendant has been affected:
[T]he ability of the State to have excluded the challenged juror ... would not have affected any substantial right of the defendant, because a defendant has no right that any particular individual serve on the jury. The defendant’s only substantial right is that the jurors who do serve be qualified. The defendant’s rights go to those who serve, not to those who are excused.
Majority opinion at 393. There are two problems with this. While on its face subsection (b) appears to be concerned with determining what a defendant’s “substantial rights” are, in King and Johnson the Court couched the inquiry in terms of influence rather than rights. A larger problem is that the Court’s conclusion that a “substantial right” was not violated sounds of a constitutional analysis:
[A] defendant has no right that any particular individual serve on the jury. The defendant’s only substantial right is that the jurors who do serve be qualified. The defendant’s rights go to those who serve, not to those who are excused.
Majority opinion at 393. By saying there is no harm here because there is no showing the defendant did not get a fair and impartial jury, the Court renders a subsection (b) error — which pertains by definition to only non-constitutional error — harmless because it does not involve subsection (a) error, a constitutional violation!
II.
As discussed above, in King , we said the question under subsection (b) is whether we could say with fair assurance the error did not have “a substantial and injurious effect or influence in determining the jury’s verdict.” This test is derived from Kotteakos, supra. Following is the entire discussion from which that language appears:
If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand, except perhaps where the departure is from a constitutional norm or a specific command of Congress. But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The *402 inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.
Kotteakos, 328 U.S. at 764-65 , 66 S.Ct. 1239 (citations omitted). In recent opinions discussing Kotteakos , the Supreme Court has not articulated the level of confidence as “fair assurance,” but rather has emphasized the notion of “grave doubt” as lying at the heart of the standard articulated there. E.g., O’Neal v. McAninch, 513 U.S. 432 , 115 S.Ct. 992, 995-98 , 130 L.Ed.2d 947 (1995)(discussing at length “grave doubt” standard established in Kotteakos); United States v. Lane, 474 U.S. 438, 449 , 106 S.Ct. 725 , 88 L.Ed.2d 814 (1986)(quoting only “grave doubt” portion of Kotteakos analysis).
Viewing influence in terms of grave doubt makes the most sense in the context of subsection (b) of our new rule since it is easily contrasted with subsection (a), which also turns on the level of doubt. Thus, under subsection (b), if the reviewing court has grave doubt about whether a non-constitutional error substantially affected the jury’s verdict, the party alleging harm must win. See O’Neal, supra. But, unlike former 81(b)(2), which required reversal unless the reviewing court determined beyond a reasonable doubt that the error did not contribute to the conviction or punishment, non-constitutional error under the new rule leads to reversal only when the reviewing court has grave doubt about its affect on the jury. In other words, a reviewing court should not reverse a conviction, even when the court cannot say beyond a reasonable doubt that the non-constitutional error did not contribute to the jury’s decision on conviction or punishment, unless it has grave doubt about the effect of that error on the jury’s determinations.
So, based upon King’s, interpretation of subsection (b), and Kotteakos , appellant’s conviction should be reversed only if we have grave doubt about the effect of the erroneous granting of the State’s challenge for cause on the jury’s determination. Under former 81(b)(2), we held the erroneous grant of a State’s challenge for cause was reversible error. Zinger v. State, 932 S.W.2d 511 (Tex.Crim.App.1996)(holding wrongful granting of State’s challenge for cause reversible error); Howard v. State, 941 S.W.2d 102 (Tex.Crim.App.1996)(opinion on reh’g)(erro-neous grant of State’s challenge for cause reversible error). While Rule 44.2 imposes a less exacting standard, error in the voir dire context is no less impossible to gauge. Given the impossibility of knowing or even speculating about the effect of the improper grant of a State’s challenge for cause, I would reserve grave doubt about the effect of that error on the jury’s determinations. 2 Ac *403 cordingly, appellant’s conviction should be reversed.
With these comments, I dissent.
. Indeed, part of the problem in structuring Rule 44.2 as dependent upon whether the error is constitutional or non-constitutional is that virtually all statutes have some kind of constitutional basis. For example, while a defendant does not have a constitutional right to a certain number of peremptory strikes, the jury selection procedures provided for in the Code of Criminal Procedure are designed to achieve an end consistent with ensuring a defendant his constitutional right to a fair and impartial jury.
. Because ' ‘[i]t is impossible to conclude that the erroneous exclusion or inclusion of a juror had an impact on the verdict actually reached” traditional harm analysis has not been applied, george E. DIX AND ROBERT 0. DAWSON, 42 TEXAS PRACTICE § 35.47 at 472 (1995). In Bell v. State, 724 S.W.2d 780 (Tex.Crim.App.1986), cert. denied, 479 U.S. 1046 , 107 S.Ct. 910 , 93 L.Ed.2d 860 (1987), we explained the rules for determining harm in the context of erroneous rulings on challenges for cause:
If a trial court erroneously overrules a defendant's challenge for cause, the defendant may establish harm by showing: (1) exhaustion of his peremptory challenges; (2) denial of a request for additional peremptory challenges; and (3) the seating of a juror upon whom the defendant would have exercised a peremptory challenge. East v. State, 702 S.W.2d 606 (Tex. Cr.App.1985); White v. State, 629 S.W.2d 701 (Tex.Cr.App.1981), cert. denied, 456 U.S. 938 , 102 S.Ct. 1995 , 72 L.Ed.2d 457 (1982); Her nandez v. State, 563 S.W.2d 947 (Tex.Cr.App.1978); Payton, supra. In non-capital murder cases, if the trial court erroneously grants a State’s challenge for cause and excludes a qualified juror, the defendant may establish harm simply by showing that the State exhausted all of its peremptory challenges. In such a case the court has effectively given the State the benefit of an additional peremptory challenge. Payton, supra. See also Culley v. State, 505 S.W.2d 567 (Tex.Cr.App.1974); and Weaver v. State, 476 S.W.2d 326 (Tex.Cr.App.1972). In capital murder cases, 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 Art. 35.13, V.A.C.C.P., 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. *403 1981). See also Turner v. State, 635 S.W.2d 734 (Tex.Cr.App.1982)_ When the trial court sua sponte excludes a qualified juror, the situation must be distinguished from a similar excusal that is prompted by the State. Grijal-va, supra, held that any State's unused peremptory strikes remaining at the end of voir dire would not remove the harm of an erroneous excusal of a qualified juror. This conclusion is based on the notion that otherwise the State would receive three unfair advantages over the defense: (1) hindsight in exercising peremptory strikes that was denied to the defense; (2) the benefit of striking last that is statutorily given to the defense by Art. 35.13, V.A.C.C.P.; and (3) the benefit of having the court strike, on behalf of the State, a venireman on appeal after voir dire error has been pronounced. But Grijalva is founded on the notion that the State caused the improper ex-cusal by issuing a challenge for cause, and is therefore penalized because of the advantages it would otherwise receive by holding a peremptory strike back. Where the trial judge, not the State, is solely responsible for the improper excusal, the justification for penalizing the State under Grijalva disappears. It is entirely appropriate in such a case to fall back on the rationale in Weaver, supra, Payton, supra, and Culley, supra, and assess harm to the defendant on whether the state had remaining peremptory strikes left at the close of the voir dire.
See also Zinger v. State, 932 S.W.2d 511 (Tex.Crim.App.1996)(holding wrongful granting of State’s challenge for cause reversible error); Howard v. State, 941 S.W.2d 102 (Tex.Crim.App.1996)(opinion on reh’g)(erroneous grant of State's challenge for cause reversible error). I do not necessarily agree with this type of "harm analysis," see Anson v. State, 959 S.W.2d 203, 205-208 (Tex.Crim.App. 1997) (Meyers, J., concurring); Zinger, supra (Meyers, J., concurring), but it has been the law for a long time. And the Court has held that the type of harm analysis applied to voir dire error under Rule 81(b)(2) will continue to apply under the new rule. Anson, supra (applying traditional voir dire harm analysis without regard to change in harm analysis under Rule 44.2).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9776110. Public record. Not legal advice.