*1 error, m no interpretation Finding But our Basden does reversible we affirm apply judgment trial court. when defendant has sen- tenced to death for a crime committed in prison.
while we that the While held legislative intent of Article 42.08 was clear- ly to deter inmates from continued crimi- behavior, it equally
nal clear that contemplate Legislature did not the sen- considering tence death when concur- sentencing. rent versus consecutive This PEREZ, Appellant, Orlando Javier conclusion is clear for several reasons. First, until delaying a death sentence oth- of Texas. STATE place
er sentences are served would position Legis- defendant in the exact No. 1430-98. position lature him not to be: the intended Texas, Criminal being able to commit further crimes En Banc. punishment without how can fear —for (since punished any he after he is dead 9, 2000. Feb. subsequent sentence assessed would pur- to be stacked onto his death sentence 42.08(b)). In-
suant Basden and Article deed, it li- would him an unlimited give to kill. cense Another indication that the contemplate imposition did penalty Article drafting death when 42.08(b) language in the very is found For a
used. sentence to “commence” or “completed” implies begin- has a ning an end. death sentence occurs and end beginning an instant —its merged single language into act. 42.08, hand, Article on the other reflects period days, service of a of time over years, Although defendant decades.
can of death for a be under sentence time, of that period of the actual service sentence occurs in a brief moment. plain language Because of the 42.08, legislative intent underlying
statute, legislative underly- intent scheme, we must penalty the death ing in- conclude that the did not apply tend Article 42.08 death sentence. We 'hold that sentence regard to may be executed without death might have Cannady pend- sentences ing.52 43.14, seq.
52. See et *2 Olson, Atty.,
John A. Asst. Dist. Borwnsville, Paul, Atty., Matthew State’s Austin, for State.
OPINION
JOHNSON, J., opinion delivered the MEYERS, court, in which MANSFIELD, WOMACK, PRICE and JJ., joined.
Appellant Javier Perez was convicted of aggravated assault with firearm and sen- years tenced to fifteen He confinement. trial, for filed motion new that a alleging disqualified juror had panel. sat his At hearing pursuant to his for new motion trial, appellant and the into a state entered ju- stipulation of evidence that one of the appellant’s rors at trial had a final convic- tion for driving while intoxicated and that was this information not discover- until ed after rendition the verdict. appellant’s trial court overruled motion for trial on the that appellant new basis had harm,” showing made no of “significant as mandated CRiM. PROC. art. Tex.Code 44.46(2). OF COURT APPEALS Corpus Christi Court of reversed and remanded. The basis its that, ruling applied appellant, art. 44.46 was with Tex. conflict Const. provides Laws shall be made exclude from office, serving juries, from suffrage, may those who been or shall hereafter convicted of bribery, forgery, or perjury, other privilege suffrage crimes. The of free protected by regulating shall be laws prohibiting adequate elections and under penalties all therein undue influence power, bribery, tumult improper practice. Warner, added.) Brownsville,
Larry appel- (Emphasis Art. 44.46 provides lant. 759, 762 (Tex.App.— in a criminal case conviction 1998). Therefore, ground Corpus held appeal
reversed on on the Christi ap that art. 44.46 was unconstitutional as juror absolutely disquali- in the case “through ap plied appellant because its fied from service under Article 85.19 of plication, he failed receive a fair and this code if: *3 composed just trial before a of twelve (1) disqualifi- the defendant raises the persons.” qualified Dorsey Id. Justice dis entered; the cation before verdict is J., (Dorsey, Id. at 762-64 dissent sented. or ing). (2) disqualification the discov- granted Attorney’s peti- We the District ered or to the attention of the brought discretionary for the review on follow- the court until after verdict was ease, ing ground: applied appellant’s As entered and the defendant makes does TexCode Grim. Proc. art. 44.46 violate showing significant the Const, XVI, § 2? grant- art. We also Tex. disqualified juror. service of the Attorney’s peti- Prosecuting ed State provides juror Art. 35.19 that “[n]o shall discretionary tion for review on follow- impaneled appears that when he ground: ing Does TexCode Crim. Proc. second, or to the third fourth cause Const, XVI, art. art. 44.46 violate Tex 35.16, though challenge § 2? parties provides may consent.” Art. 35.16 part: in relevant ANALYSIS (a) objection A for cause is an challenge that, applied its determination particular juror, alleging made to a some 44.46 with art. appellant, art. conflicted incapable fact which renders him or un- XVI, 2,§ first deter- challenge jury. fit to on the serve crimes,” phrase “high as it mined that the cause be made either state in art. refers to felo- appears one of the follow- any or defense Perez, n. 3.1In his nies. 973 S.W.2d ing reasons: dissent, disputed defi- Dorsey Justice that He that enumerated argued
nition.
turpitude
so
involve moral
and
offenses
2.
That he
been convicted of
in-
“high
that
crimes” must also
indicate
any felony;
theft
(Dor-
turpitude.
Id. at 763-64
volve moral
3. That he is under indictment or
J.,
sey,
dissenting).2
legal
any
for theft or
other
accusation
provisions
the Texas
Notably, felony;
specifically to
refer
felonies.
Constitution
insane;
4. That
ishe
Const,
Ill,
(Privilege
§ 14
art.
See
Tex.
Const,
added.)
arrest);
VI, § 5
(Emphasis
from
art.
The court found
Tex.
arrest).
XVI,
These
purpose
prohibit
(Privilege
of voters from
art.
“is to
XVI, § 2
provisions
have
serving
juries.”
two
and art.
felons from
Perez
turpi-
proposition
prohibition
crimes of moral
only authority
cited for this
al
involved
Long,
privileges
Considering
was Welch v. State ex rel.
tude.
the nature of
denied),
(Tex.App.-Tyler
writ
wrong-doers (public
and duties denied the
usage
ordinary
"[i]n
which states that
service,
vote),
service,
right to
[‘high
nothing
phrase
crime’] means
more
Cer-
agree with Mr. Welch.
an inclined to
grave
suggests,
This
than
serious or
crime.
tainly
listed involve
the identifiable crimes
bribery,
especially
per
after
references
turpitude, and
of the offices
moral
the nature
phrase
jury,
forgery, that
and
refers
positions
are
rights
and
denied the offenders
(Citations omitted.)
felonies.”
public
inconsistent
of elevated
trust
unworthy
proven
such trust.”
those
to be
"[Mr,
argued including that unde-
Welch]
J.,
Perez,
(Dorsey,
S.W.2d at 764
dissent-
following
bribery,
the crimes of
fined term
perjury,
ing).
forgery implied
and
the constitution-
forms,
state,
appeared,
substantively
reasonably
identical
mental
cannot
be charac-
Thus,
every
“high
constitution since 1845.3
terized as a
crime.” See
Tex. Pen.
49.09(b). Thus,
§§
all
the framers of
our
were
&
un-
constitutions
49.04
even
Code
certainly
“felony.”
familiar with the term
reading
the broadest
of Tex. Const.
der
they
persons
If
had meant that
juror
be exclud-
was not
art.
constitu-
from,
alia,
rather,
jury duty
ed
inter
basis
tionally
serving;
disqualified
conviction,
any felony
presumably,
then
As
disqualification
statutory.
Instead,
they
such,
would
said
so.
howev-
no conflict in the
case
there is
instant
er,
44.46,
they
phrase
used
“other
art.
between
crimes.” It appears
something
applied
else
the latter is not unconstitutional as
phrase.
was meant
appellant. The
Attorney’s
District
*4
Attorney’s
Prosecuting
grounds for
State
high
What
is meant
“other
review are sustained.
crimes” can
using
be determined
the rule
Based
foregoing,
judgment
on the
of
statutory
ejus-
of
construction known as
reversed,
Appeals
the Court of
is
and
generis,
interpret
dem
which
that in
holds
pro-
cause is remanded to
court for
ing general
words
follow an enumer
ceedings
opinion.
consistent with this
particular
ation of
specific things,
meaning
general
of those
words should be
J.,
KELLER,
filed a concurring opinion.
See,
things
confined to
of the same kind.
J.,
HOLLAND,
concurring
filed a
opinion,
Ex
e.g.,
parte Roquemore, 60 Tex.Crim.
P.J.,
McCORMICK,
in which
282,
1101,
(1910);
131 S.W.
1103-04
Ex
J.,
KEASLER,
joined.
467,
parte Muckenfuss, 52 Tex.Crim.
107
1131,
(1908);
S.W.
1131-32
see
2A
also
KELLER, J.,
a concurring
delivered
§§
47.17-47.22
SUTHERLANDStat. Const.
opinion.
(5th ed.1993); Black’s Law
Dictionary
517
(6th ed.1990). In order to harmonize the
question
present
in the
is
case
high
term “other
“bribery,
crimes” with
whether Texas Code of Criminal Proce-
forgery, perjury,” that term must be limit
44.46(2)
dure, Article
violates Article XVI
ed to criminal conduct which demonstrates
§ 2 of the Texas Constitution.
I would
type
the same
of
corruption
moral
44.46(2)
hold Article
be constitutional
dishonesty inherent
specified
of
entirety.
its
Perez,
fenses. See
In the instant the eom- “al Texas Constitution because the statute plained-of juror juries of empaneled convicted lows to be with persons driving offense, while intoxicated. bribery, perju This who have been ‘convicted of crimes,’ which does even require culpable ry, forgery thereby or other high Judge concurring opinion § 3. Previous of versions art. 2: Tex. 4. Holland's states 1869, 2; XII, § of art. of Const, Const, phrase that the "other crimes” should Tex. 1866, 4; 1861, VII, § art. of art. Const, Tex. limited crimes which demonstrate VII, 4; 1845, VII, § § 4. of art. Const, Tex. dishonesty, corruption moral basis Ill, § Previous versions of art. 14: Post, Tex. XVI, § the word "or” in of art. 2. Ill, 20; 1869, § of art. of Const, Const, Tex. J., However, (Holland, concurring). 225-28 1866, 15; 1861, Ill, § art. of art. Const, Tex approach ignores use of word 16; 1845, Ill, Ill, § § of art. 16. Const, Tex. provision. that same term "other” in That VI, § Previous versions of art. 5: Tex "high specifically indicates that term Ill, 2; 1869, § art. Const, Const, Tex spe- type to the crimes” should limited 1866, Ill, 2; 1861, § art. art. Const, Tex. cific crimes in art. listed Ill, 3; Ill, § § Const, Tex. destroying jury’s purity.” Perez v. entered and the defendant makes (Tex.App.— showing significant ser- 1998). Corpus The court further disqualified juror. Christi vice of the stated that the “statute flies in the face of 44,46. question Article we confront purpose article of which section ability this limitation on the whether prohibit ju is to felons from service on appellate court to reverse conviction vio- discussion, ries.” Id. In its the Court of proscription against lates constitutional briefly referred to Article I persons jury service convicted of certain “purity which refers to the and effi crimes. ciency” by jury. to trial Id. C. Article I provisions B. The relevant First, Appeals’ the Court reliance Article XVI of the Texas Constitu- upon §I requires 15 of the Texas Constitu- to enact laws misplaced. support holding tion in of its excluding persons convicted certain provision part: That in relevant enjoying crimes from certain benefits en- states by jury shall remain joyed citizenry, including service “The *5 pass juror: Legislature a inviolate. The shall such the may regulate be needed to laws to from Laws shall be made exclude same, purity and effi- and to maintain its office, serving juries, on and from the added). The ciency.” (emphasis Id. may those right suffrage, of “purity” “efficiency” words relate been or shall hereafter be convicted of jury the right by jury, to a trial not to the or bribery, perjury, forgery, of the is main- purity right itself. The crimes. in all by providing right the cases tained granting The enacted a law Legislature is jury required for all that the issues and the in a criminal the State defendant not the (assuming right decide right challenge case the for cause a waived). efficiency right of the refers juror prospective who “has been convicted procedures the asserting right. to the for any felony.” theft or Texas Code keep applies § in 15 We should mind 35.16(a)(2). Procedure, Article Criminal criminal and civil cases. “effi- provided further that con- jury may trial be ciency” right of the to a a an viction for theft is absolute cases, in significant more for civil juror disqualification, and that a a is jury the right is waived unless may a disqualification such not seated paid. is jury and a fee timely asserted parties. of the Texas even consent Civ. P. Tex.R. 216. Procedure, Article 35.19. Code Criminal specified But the that the means, of by jury “The to a trial right absolutely such an disqualified service of course, impartial right a trial an the person in reversal of a convic- would result State, Tex.App. v. 18 jury. See Pierson circumstances: only tion under certain (1885). denying limits of 524 Within the may in a criminal case conviction jury, legisla the parties impartial the an on that a appeal ground reversed im- procedure prescribe ture absolutely disquali- juror in the case was panelling qualifications jury fied service under Article 35.19 of from Commentary, jurors.” Interpretive Ver if: this code § Const., p. I Article non’s Ann. Tex. (1) disqualifica- added). the defendant raises the (emphasis I understand 558 entered; or the verdict is before jury qualifications to mean that (2) of the constitutional disqualification part not are not was discover- service by Article right by jury protected to a trial brought ed or the attention of the I§ until after the verdict was 15. trial court
223 Moreover, empaneling the exclusion criminals ute does not authorize the service; simply a jury explicitly jury from the is addressed felons for addresses provision, Article the defendant will obtain a reme- separate constitutional whether § such Presumably, dy empaneled.2 2. the framers of the a fact In XVI felon situation, consequence not that Article Constitution would have believed separate § if the XVI 2 has al- provision necessary designed prevent encompassed ready trial also occurred: the criminal has served. jury. exclusion at obtains kind of criminals Or Whether the defendant some least, is, best, remedy the framers would have addressed as a result the issue -within same constitutional collateral question. provision, addressing topic instead of ways question some is similar to section, merely in a different but in an § regarding one we decided Article I entirely different article. I conclude that prohibits Article I unreasonable presence of a felon convicted and seizures. Whether a viola searches implicate a to a party’s right does not provision (e.g. tion of that an unreasonable jury trial under I Article search) suppression results of evi dence obtained as a result that violation § 2
D. Article XVI (i.e. rule) employment exclusionary The issue here is whether separate, collateral issue encom violates Article XVI granted passed by that consti Ap- Texas Constitution. The State, tutional See provision. Hulit peals’ opinion suggests that the statute (Tex.Crim.App.1998)(cit permits empaneling crimi- certain ing Welchek 93 Tex.Crim. in violation of provi- nals this constitutional (1922)(Article § 9 contains no S.W. *6 But, by Dorsey, sion. as noted Justice rule)). exclusionary Reversing a convic § 2 prohibit Article not XVI does itself the jury felon on is tion after a has served the any juror. empaneling person a analogous applying to an rule exclusionary provision Legislature directs the to enact the fruits of in that illegal an search to prohibit empaneling laws the of certain rely upon both situations the notion of State, persons. Perez at 763 justify proposed the rule. deterrence (Dorsey, dissenting). Legislature J. Exclusionary attempt rule advocates would followed that Ar- by enacting mandate police by excluding to deter misconduct 35.16(a)(2) so, In doing ticles and 35.19. the their misconduct from crimi fruits of Legislature Likewise, went further than mandat- reversing nal trials. a convic by including felonies, just ed all already pur and not obtained can serve the crimes.” “high pose prohibiting jury by These enactments estab- service felons (if all) persons lish that by deterring theft or the service of absolutely conviction are disqualified juries holding from felons on in the future. serving §I jury empan- exclusionary on the and cannot be that 9 contains no Article rule, So, even if the parties rejected eled consent. we the notion that the Texas provision’s requirements necessarily incorporates de constitutional Constitution fulfilled, nothing have been is further terrence-based remedies for violations required.1 rights. constitutional 44.46(2) Moreover, in any way persuasive
Article not there are far more does prohibitions excluding re- jury “undo” the service reasons for deterrence-based § by Legislature. XVI 2 avail- established The stat- lief under Article than were fact, 44.46(2) majority’s meaning applies only 1. The discussion of the of 2. And in Article returned, already after a verdict has unnecessary "other crimes” is dismissing ju- consequently, the unauthorized disposition this case. option. panel longer is no ror First, exercising and to the conditions for Article I the Constitu- outline for able affirmatively prohibit jury right. tion does not felons; rather, § 2 Article XVI service Further, merely estab Legislature doing laws to enact directs for harm for a assessing lishes a standard Thus, the invests in the so. Constitution statutory recognized violation. We ability determine the Legislature the of contexts that variety a wide errors— prohibit jury used to service methods constitutional and non-constitution employ deterrence- felons. Whether analysis. Only to a harm al—are a matter left to the approach based is federal constitutional errors labeled can, in its Legislature, Supreme States Court as “struc United discretion, determine that certain deter- immune analysis. tural” are from such inappropriate approaches rence-based are State, (Tex. 262, 264 Cain v. 947 S.W.2d prohibit unau- attempting methods of Crim.App.1997). recognized We have jury thorized service.3 Legislature’s authority to establish violations, statutory standards Second, the not Constitution does confer vary depending upon the standard of harm to exclude upon the defendant Al party objected at trial. whether § 2 from the Article XVI jury. criminals manza (the solely upon does not focus service (Tex.Crim.App.1984)(opinion rehear ability to hold provision addresses analysis imposed harm ing)(statutorily vote) provision not office and and that does error). charge Instead, upon litigants. confer a excluding per- calls for laws certain section § 2 a constitu- Although Article XVI enjoyment from the civic sons several not provision, provision does tional activities, fo- including jury service. The prohibition constitutional establish juror’s prospective rights, is upon cus instead, service; provision against jury upon a criminal rights party of a es- requires merely is, thus, or civil lawsuit. Article XVI statutory good prohibition. tablish a designed rights upon litigants confer example contrasting provision is Arti- designed rights pro- to limit the but which first consti- cle establishes *7 excluding spective jurors by per- certain (“The right trial right jury tutional to upon convic- sons from service based inviolate”) and by jury remain shall The tion for certain crimes. Constitution pass laws to requires Legislature then the upon litigants to chal- standing confers no (“The right Legislature enforcing that (and thus lenge service such criminals to pass may laws needed shall such be reversals), nor does the Constitu- obtain same, to maintain its regulate the Legislature that the confer require So, by a efficiency”). service purity and standing. Legislature If the chooses such categories of the felon falls within one a chal- standing to confer mount such § 2 is a mere in outlined Article XVI place conditions and lenge, violation, Legisla- it is free the for which statutory upon the conferred. standing analysis restrictions a harm prescribe ture can —as Legislature the extent that the a felon were To service has done. Even violation, right criminal defendant the a constitutional given considered be however, as a not be a constitutional obtain a reversal his conviction it would as ex- rights, of a thief or felon result service violation of the defendant’s only conferred plained right not The the the above. —a statutory origin, upon the defendant is required grant —the 35.19, granting that in 35.16 and upon limits found Articles empowered place encourage exposure and earlier remov- in the The harm standard contained jurors. 44.46(2) may, designed al of unauthorized arguably, have been ability the defendant the assert an interpretation, chal- rule but aid to inter lenges for cause. pretation, the not other when intention is apparent.” wise Thomas v. 129 Tex.
I in judgment. concur the Court’s (Lat (1935) Crim. timore, J., HOLLAND, J., dissenting). The aid should not concurring filed a McCORMICK, opinion P.J.,and operation be invoked “to restrict the the KEASLER, J., joined. within limits Legis act narrower than the ejus- lature intended.” Id. The doctrine of I join majority’s the the conclusion that construction, generis “only dem a rule of judgment Ap- of the Court of Thirteenth as an applied ascertaining to be aid in I, however, peals should be reversed. do intent, legislative and cannot control where not agree reasoning with their that plain purpose Legis and intent of the phrase high “or other in Art. crimes” thereby lature would or de only turpi- refers hindered to crimes of moral Therefore, Inc., Downs, tude. I concur in the feated.” Hurt Oak judgment of the majority. (Tex.App.-Dallas w.o.j.). writ dism’d
I. Instead, significant it is more that cause, In this the majority determines disjunctive framers used the “or” in its list that driving while intoxicated is offenses in Art. 2. When crime high because it is not a crime separated “bribery, perjury, framers turpitude moral bribery, perjury akin to forgery” from “other high crimes” forgery and “does require not even “or,” disjunctive they established alter- culpable mental state.” con majority relationship “bribery, per- native between juror, cludes that the who had been con jury, and “or forgery” high other crimes.” intoxicated, victed felony driving while such, “As there is no conflict the instant disjunctive but usually, [T]he “or” 44.46, case between Art. 2 and art. always, separates phrases words or and the latter is not unconstitutional as relationship, indicating alternate applied Ante, to appellant.” op. at 221. separated that either words or majority’s interpretation believe phrases employed without phase “or other high crimes” in Art. disjunctive other. use of usual- XVI, § 2 is too narrow. ly requires indicates alternatives and majority upon relies principle sepa- that those alternatives be treated ejusdem generis support its conclusion It rately. generally ... means “or other crimes” means no more joined by disjunctive terms “or” “ than turpitude.”2 crimes of moral must meanings have different because *8 Ante, op. at Essentially, ejus- 220-21. provision or otherwise the statute would generis dem means that a general when be redundant. terms, term specific follows a term or (5th specific govern § will 1A general. Ejusdem 21.14 SUTHERLANDStat. Const. however, generis, is Supp.1999). “not in and of itself a ed. 1993 & XVI, § provides, they 1. Art. turpi- include those crimes of moral from..., "Laws shall be made to bribery, perjury exclude tude which are akin to and serving juries,..., who those forgery. involving These would crimes or been shall hereafter be convicted of brib- contrast, dishonesty. false statement or all forgery, ery, perjury, high or other crimes." turpitude crimes moral would also include Const, XVI, § See Tex. art. 2. describing offenses acts and character of vile- ness and baseness which set the offender 2. majority I believe the intent of the is not turpitude. apart Gloria, society. all rest include stead, crimes of In- from the See U.S. v. moral by 477, (5th meaning principle Cir.1974). 494 F.2d ejusdem generis majority opinion out set in the felony a been convicted of was barred statutory with this rule had Consistent phrase provisions I interpretation, holding public by believe the “or from office XVI, § 2 high in Art. refers other crimes” the enabling the Election Code and regardless they XVI, of whether § all felonies of Art. The defendant language dishonesty or turpitude involve moral or XVI, prohibited argued in Art. Welch interpretation This is statements. false the removal of state officers offenses by laws enacted consistent with several felony is nei such as DWI because “DWI pursuant to the framers’ di- Legislature turpitude nor ther a crime of moral an XVI, § Legislature in 2. The rective Art. rea, requires a it can offense which mens person a that a stating has enacted rule high as that not be considered a crime finally felony, has convicted a been Id. at term is used the Constitution.” person par- from which that “has from the or released re- doned otherwise explained why an indi- Tyler The disabilities,” to be a sulting eligible is not felony vidual who had been convicted for to, for, appointed a candidate or elected or subject while driving intoxicated public in this state. See office Tex. Elec. XVI, 141.001(a)(4). § 2. It provision of Art discussed Legisla- § Code Ann. ordinary usage, phrase means county that ture has also decided that when a petit jury any grave is a than a or a nothing officer convicted more serious involving offi- felony Tyler for misdemeanor Court under- crime. See id. The misconduct, cial that conviction serves as “or the context stood crimes” county of that offi- immediate removal Art. 2 to mean felonies and cer from office. See Tex. Loc. Code not bar Gov’t concluded that the constitution did out in § set 87.031. Ann. public from office. the defendant’s removal any- Criminal Procedure that the Code of See id. of, convicted or under indictment or one have also appellate The state courts dis for, any felony, legal theft or is accusation XVI, 2§ directs the cussed whether Art. service, absolutely disqualified from felons, generally, to bar impaneled jury, on a and is shall serving juries. In Easterwood challenge for cause either (App. 34 Tex.Crim. 31 S.W. PROC. Ann. art. party. See Tex.Code CRim. 1895), pursuant this Court concluded 35.16(a)(2)and(3) and 35.19. See also 2,§ if (8). to the directive of § and Tex. Govt.Code Ann. been convict juror as a has “party offered Lastly, Legislature has enacted rule privilege felony, he debarred person voter” ed of a stating “qualified that a Glenn, finally suffrage.” if has not been convicted of In R.R.E. he or she or, convicted, met one felony (Tex.App.-Fort of a so Worth 191-93 statutory qualifications. denied), of three See the Fort Worth Court writ Tex. 11.002(4)(A) (B). party had not concluded that Ann. Elec.Code statutes, Legisla- these believe the From rights if his constitutional been afforded of Art. has viewed the mandate ture person who had been jury included a enabling to enact laws exclud- 2 as them had not been convicted office, serving on felons from elective ing court of pardoned Governor. juries suffrage. from the the loss appeals discussed *9 whether it ex petit jury and serve on a Interpreting high “or other crimes” as felons, merely those con not tended all with the inter all is also consistent felonies turpitude, in moral victed of crimes of XVI, § by appel 2 pretations Art. other XVI, § 2. id. The court of Art. See terms In Welch v. State late courts of state. party, that “a wheth concluded appeals (Tex.App.- Long, 79 ex rel. or a a civil action denied), party he be a 1994, Tyler er Court Tyler writ action, has not person defendant in criminal that a concluded
227 XVI, They, § rights phrases been afforded his constitutional in the text of Art. however, jury composition in his not case includes did do so. person who has of a been convicted majority’s oth- Lastly, the view “or pardoned and has been not Gover high crimes” means other er crimes at nor.” See id. for- type bribery, perjury the same as or majority that the framers believes potential problems. gery has the create phrase Texas Constitution used the im- majority’s opinion language 2§ “or other in Art. high crimes” plicitly limits the definition of “or other distinguishable because was from their to those involve high crimes” crimes which Ill, “felony” use the term in Art. dishonesty false n. or statement. See VI, § or Art. majority contends If from an individual is barred infra. framers, therefore, that the ex meant to seeking elective office or from be- voting all involving turpi clude felonies not moral unpardoned, cause he felon is an convicted phrase from inclusion in the tude “or other prevent and the statutes set out him above ante, high op. crimes.” See 221. I dis or holding voting, office and if the agree. It not unreasonable to conclude felony for he has been convicted phrase the framers selected the “or other dishonesty does not involve or false state- high simply crimes” because it similar ment,4 complain he could not based on the phrase “or to the other High Crimes and majority today? decision of the If Art. II, § Misdemeanors” used in Art. XVI, § 2 only authorized the phrase Federal Constitution.3 The “or barring enact statutes from office and High other Crimes and in Misdemeanors” voting booth those who have been con- the Federal Constitution is viewed as involving victed of a crime or dishonesty phrase of meaning, older indefinite “which statement, false com- could individual has held include such immoral and plain of denial his rights Equal nearly unlawful are and equal acts allied Protection under the Federal Constitu- felony, in guilt yet, owing to some tech argue tion? Could he not that our state nical not circumstance do fall within the does bar constitution not him as unfit from felony.” definition of Law Black’s Dictio public or the voting office booth? Could (3d ed.1933) 480; College naRY Law Dic not un- argue he that the has tionary (2d ed.1931) phrase 381. The in singled justifiably him out for loss of his II, § 4 Art. has including been viewed as rights, though he paid even has his debt to felonies as well as “the or more serious society and has been rehabilitated? misdemeanors; aggravated those which nearly equal are allied guilt majority fails answer the issue felony, but do fall within its definition.” before this this matter —whether Garner, 44.46, Fimara 86 Conn. 85 A. section of the Code of (1913). Additionally, if the framers of Criminal Procedure subverts the intent of our state had “or 2§ constitution meant for Art. of the Texas Constitution. so, only “high mean crimes” to In their effort to do their believe crimes of turpitude” “high moral or crimes interpretation novel statement," or involving dishonesty potential problems they false than created more they would have included one those have resolved. Const, assault, II, 4 burglary, robbery, possession
3. U.S. sets out: sexual President, substances, “The Vice President all civil distribution of controlled Officers of United State shall be re- felony intoxication offenses. for, Impeachment moved from Office on of, Treason, Bribery, and Conviction or oth- only support they 5. The in their found High er Crimes and Misdemeanors.” dissenting position opinion in the Jus example, 4. For crimes which do involve Dorsey below. tice *10 murder, dishonesty false statement include by jury
II. to trial under the Sixth Amendment of the U.S. and Constitution granted petition This Court the State’s I, § under Art. the Texas Constitu- the discretionary review6 examine court, however, tion. The trial declined to 44.46(2). constitutionality Art. would 44.46(2) find that Art. was unconstitutional court of appeals reverse the decision of the appellant’s and motion overruled for new enactment of Legislature’s because the trial. 44.46(2) permissible Art. decision was subject a non-structural trial error majority Corpus A Christi Court was, analysis harmless there- error 44.46(2) Art. un- concluded was fore, not the unconstitutional. review of constitutional. Perez v. 973 S.W.2d history necessary of this
factual
cause
1998).
(Tex.App.-Corpus
Christi
The
adequately resolve the issue before this
44.46(2)
court
that Art.
in-
reasoned
was
Court.
consistent
the Texas “constitution’s
purpose
purity
maintain
A.
composition
jury’s
qualified persons.”
hearing
ap-
court held a
on
trial
Id.,
opinion,
Art.
the court’s
pellant’s motion for new trial. At that
44.46(2) destroyed
juries
“purity”
argued
his
hearing, appellant
that one of
people who had been convicted of
allowing
Garcia,
jurors,
possessed
prior
Jesus
“bribery, perjury, forgery
or other
felony
driving
conviction for
while intoxi-
empaneled
jurors.
Id.
crimes”
judicial
trial court
notice
cated. The
took
court believed
instant case was
that Garcia
a convicted felon at the
appellant
particularly offensive because
stipu-
appellant’s
time of
trial. The State
being
was not at fault for
unaware of
trial
during
lated that
voir dire the
court
status as a convicted felon. The
Garcia’s
jurors
they
ever
asked the
had
emphasized that Garcia
court
served
felony
convicted of a
and Garcia failed
jury solely
because of
“affir-
Garcia’s
But
prior
his
conviction.
disclose
misrepresentation.”
mative
See id. The
learn
proved
the State
did
Art.
appeals
court of
concluded that
prior felony
Garcia
conviction until
had
44.46(2)
incompatible
with Art.
its
minutes after
returned
purpose
of the Texas Constitution “the
verdict.
prohibit
serving
of which is to
felons
appellant
At the
claimed that
hearing,
juries.”
Id.
grant
trial
the trial court should
him new
urges this Court to reverse
finally
because
had been “convicted
The State
Garcia
44.46(2),
appeals, argu
upon
Art.
of the court of
felony.” Relying
decision
44.46(2)
that,
responded
ing
enacted Art.
the State
because Garcia’s
mandate to
pursuant
nor
felony conviction was not discovered
its constitutional
regulate [the
“pass
as needed to
brought to the attention of the
such laws
entered,
and to maintain its
appel-
by jury],
of trial
until after
verdict was
I,
efficiency.”
significant purity
lant had the burden to “show
Tex.
Const.
44.46(2)
argues
15. The State
disqualified
service
of the interests of Art.
juror.”
opinion, appellant
In the
consistent with both
State’s
I, §
State
Appellant
efficiency.
showing.
purity
no
had made
such
15—
the instant violation
subjecting
44.46
his
that Art.
conflicted with
claims
argued
For
discretionary
argues essentially the same issue.
petitions
The State filed
through
County District
opinion
review
the Cameron
we will consider
purposes
through
State
Attorney’s office and
Prose
Attorney and the State
of the District
offices
cuting Attorney's office. The Cameron Coun
single
Prosecuting
party,
Attorney to be a
Attorney’s
argues that Art.
ty District
office
wit,
Hight,
State. See State
violate the Texas Constitu
does not
1995).
(Tex.Crim.App.
Prosecuting Attorney’s
The State
office
tion.
*11
of Art.
2 to
analysis
the harm
set
But
44.46
Art.
also satisfies the mandate
fatally
out in Article
un
of Art.
which
Leg-
does not
states that the
efficiency
maintain
islature must
of the
protection
dermine the
by
advanced
Art.
by jury.
to
right
accomplishes
trial
It
this
XVI, § 2.
by encouraging
pro-
trial courts to halt
ceedings
a
before
verdict
entered and
B.
disqualification
declare mistrials
brought
during
to their attention
trial.
In
Corpus
Appeals
Christi Court of
situation, the
this
trial courts realize the
Legislature’s
concluded the
decision to re-
It
appeal.
case will be reversed on
a
quire
showing
“significant harm” be-
efficiency
right
serves the
of the
trial by
a
permitting
fore
under Art.
reversal
jury by
jury’s
preserving
integrity
44.46(2) did not “effect the constitution’s
verdict,
entered,
already
which has
been
so
purpose purity
maintain the
of the
long
signifi-
as the defendant has not been
Id.,
composition.”
jury’s
at 762. In reach-
cantly harmed.
conclusion,
ing this
I believe the court of
Corpus
Court
Christi
appeals
requirement
overlooked the
overlooked the constitutional mandate of
Legislature satisfy
purpose
dual
preserving
efficiency
right
of the
passing
when
regarding
jury:
laws
trial by
by
Instead,
jury.
appeals
the court
purity
right
by
to trial
jury, and
sought
preserve
mandate
efficiency
right
jury.
of the
to trial by
“purity”
of the
to trial
jury. As
When the
adopted Art.
result,
the court of appeals decided Art.
44.46(2) of the Code of Criminal Proce-
44.46(a)(2) was unconstitutional because it
dure,
complied
purposes.
jury’s
would allow a
verdict
stand even
44.46(2) permits
appellate
Art.
though it contained an
disquali-
otherwise
to reverse a
ground
conviction on the
juror
was, therefore,
fied
pure.
In
juror
“absolutely
disqualified”
decision,
Corpus
this
Christi Court of
one,
two
disqual-
circumstances:
when the
Appeals implicitly concluded that the erro-
brought
ification was
to the trial
of disqualified juror
court’s neous inclusion
on a
entered;
panel
attention
before the verdict was
was immune to harmless error
two,
analysis.
disagree
supposition.
when the
with this
disqualification was
brought
the trial court’s attention after
error,
No
jurisdic
whether it relates to
entered,
the verdict was
and the defendant
tion, voluntariness of a
plea,
any other
shows he
a “significant
suffered
mandatory requirement,
is “categorically
disqualified juror.”
sendee of the
By
analysis.”7
immune to a
error
harmless
allowing appellate courts to
con-
reverse
(Tex.
Cain
victions when a disqualified juror has
Cain,
Crim.App.1997).
In
the defendant
on jury,
served
Art. 44.46 honors the re-
complained of the trial court’s failure to
quirement
of Art.
2 of the Texas
potential
admonish him of the
deportation
Constitution that
the legislature make
consequences
plea
guilty
pursuant
his
excluding
laws
26.13(a)(4)
individuals
have been Art.
of the Code of Criminal
“bribery,
convicted of
forgery, perjury or
This
Procedure.
Court held that the trial
from serving
juries.
crimes”
court’s error
error
harmless
way,
44.46
puri-
Art.
maintains the
analysis and further concluded that
ty
trial by jury required by
properly
trial court’s failure to
admonish
I, §
the defendant was harmless because the
1246, 1264-65,
Only
specific
those
federal constitutional er-
111 S.Ct.
113 L.Ed.2d
(1991),
(stating
Supreme
rors
labeled
United
Supreme
States
Court as
are
structural errors
defined certain federal constitutional errors
and, therefore,
categorically immune to harmless error anal-
as "structural”
immune to
Fulminante,
ysis. See
analysis).
499 U.S.
harmless error
Arizona
*12
missing portion
a
of the record
defendant was United States citizen and when
264;
subject
deportation.
“necessary
appeal’s
See id. at
to the
not
was shown to
State,
v.
Relying
see also
the State’s C. the defendant could not reversible because fair show he denied a trial that Art. This Court should conclude 44.46(a)(2), I con a de- impartial jury). would therefore its requirement case does not involve the erro- significant clude that instant fendant show federal con felon on his an occurrence a structural neous of a convicted inclusion the Texas Consti- stitutional error. invalid under jury, calls for the merely tution. Art. State, Finally, in Issac v. 989 S.W.2d analysis application harmless error (Tex.Crim.App.1999), this Court of the Code of Crim- violation Art. 35.19 to Art. dealt with statute similar was enabled Art. inal Procedure which 44.46(a)(2). This in Issac Court concluded XVI, § 2 Constitution. Art. 34.6(f)(3) Appel- Rule Rules of of the 44.46(a)(2) I, § 15 goals of Art. serves effectively called for a late Procedure of the Texas Constitution. analysis permit- harmless error because Here, appeals agreed missing of a ted a new trial the event 44.46(a)(2) violated the appellant that portion appeal only trial record on may resist a merely because such errors nothing type of error which view There is analysis. meaningful error should be immune harmless error determination.” harmless "Appellate courts should foreclose entire at 264. Cain v. categories re- from harmless error error invi- protection Texas Constitution’s of his
olate trials. would reverse judgment appeals court of 44.46(a)(2) that Art. conclude is not uncon- majority stitutional. Because fails to *13 Wilson, Houston, Troy appellant. J. so, respectfully in their do concur Jr., DA, judgment. McStay, Robert F. Assist. Houston, Horn, Jeffrey L. Van Assist. Paul, Atty., Atty., Matthew State’s State Austin, for State.
OPINION J.,
MEYERS, opinion of a delivered unanimous Court.
Stanley PAYNE, Appellant, juryA appellant convicted of murder years him and sentenced to five confine- ment. See Tex. Penal Code Ann. 19.02 of Texas. STATE 1994). (Vernon First of Ap- Court
No. 624-99. peals appellant’s reversed conviction trial, holding remanded the case for a new Criminal of Texas. erroneously the lower court denied request appellant’s Feb. instruction
on the voluntariness his conduct. (Tex. Payne 1999). App. [1st Dist.] —Houston conclusion, reaching appellate its analysis. did conduct We granted the State’s Petition for Discretion- ary ap- Review to determine whether the pellate appel- by reversing court erred applying lant’s conviction without first relevant harmless error test. day shooting, appellant
On fianceé, appellant’s Joanna Williams (‘Williams”), got argument into an victim. victim threatened Appellant and tried to her. Williams kiss pulled gun then out a and held it to the attempted victim’s neck. The victim away slap gun gun discharged fatally striking first bullet twice—the neck victim the and the second bullet hitting hip. Williams Both Williams janitor incident witnessed the gun testified that went off when the hit appellant’s victim hand. trial, appellant requested
At and was denied a instruction on the voluntari- Ap- of his conduct. In the Court of ness