*1 Conclusion overrule majority
If wants Powell, it do so. If it
Williams and should Junious, McClin- Ware and
believes that Tooke and
ton are better reasoned
Dickerson, explain why. it If it should Appellate Rules 21.4 22.3
believes
grant judges plenary power alter
sentences, why. it Since explain should this, I majority opinion does none of join it.
cannot SANCHEZ, Appellant,
Arthur Garcia
The STATE of Texas.
No. PD-1230-04. Texas, Appeals
Court of Criminal
En Banc. 22, 2005.
June *2 Valdez, Atty., B. Asst. District
Enrico Antonio, Paul, Atty., State’s Matthew San Austin, for State.
OPINION COCHRAN, J., opinion delivered KELLER, P.J., Court, in which WOMACK, PRICE, KEASLER and HOLCOMB, JJ„ joined. question for granted appellant’s sole
We appropriate is the “[w]hat review to decide is allowed to test for harm when commit to a set of improperly test for facts?” hold that the We 44.2(b) harm set out Rule is that Procedure,1 Appellate Rules of Texas appro- use reviewing that courts should priately tailored set factors determine rights the defendant’s substantial court of have affected. Because the been rely Rule expressly did not 44.2(b) of a have the benefit full set of appellant it factors when determined that purportedly was not harmed State’s we re- questions,2 for reconsid- mand this case to eration.
I. driving Appellant charged was dire, During voir while intoxicated. at tri- that the evidence anticipating suffered appellant al would show polio, from asked physical disabilities following jury panel questions: may some evidence There be hear evidence about you may disability. my is: physical And just sensitive or Antonio, anyone will here Stevens, L. San Stephanie thinking process lends thinks that their Appellant. 02-00624-CR, Tex.R.App. 44.2(b) (any P. nonconstitutional Sanchez 04 - “error, defect, irregularity, Tex.App. or variance WL LEXIS rights 2004). dis- substantial must be does affect App.-San Antonio regarded”). protec- them to feel need to legs be more lant braces on had and used a cane physical tive of people with disabilities? support polio. as result The offi- Is anyone they there here who thinks appellant perform any cer did not ask reaching have a hard time a verdict physical field tests he sobriety because based on fact that there appellant “you noted was disabled and physical disability? evidence of a need to be fair with each individual for his capability; handicap, naturally he has a Appellant objected that prosecutor was you [physical can’t do sobriety field veniremen, tests].” attempting to commit the Appellant present any did not evidence. objection. the trial court overruled his evidence, Based the State’s prosecutor The then continued: appellant driving convicted while intoxi- you Assuming that have evidence be- *4 cated, and the trial judge punish- assessed yond a person’s doubt that a reasonable days jail probated ment at 120 in for one lost the physical normal use of their year. faculties, you’re juror— if selected as a you you
mental faculties—do think claimed, alia, appeal, appellant On inter would give have a bias favor of or trial that the court when it erred overruled a person physi- more benefit to who was appellant’s objections the prosecutor’s cally you Do you disabled? think juror alleged questions. The would? anybody they Does feel like court declined to address the might do or they this would do prosecutor’s ques- that? Anybody the first row? were, fact, tions improper commitment Instead, questions. Appellant again objected it stated and the trial again objection. overruled his The [appellant] Because was not harmed only responded venireman who to this ruling, however, the trial court’s we said, questioning was Ms. Nichols who not need address this issue. A defen- “Not (1) unless that there was an establish- is only dant harmed he all exhausts ment disability that the had something (2) of his peremptory challenges, he re- do what led others to Ms. (3) believe.” quests challenges, request more his Nichols was number twenty; neither (4) denied, objec- is and he identifies an used a peremptory side strike her against person tionable on seated on complete because the six-member was he per- whom would have exercised a before reaching her number. Here, emptory challenge. veni- member responded prose- re to the po-
The
a
State’s evidence showed that
cutor’s
not
did
serve on the
lice
stopped appellant,
officer
who was
jury. Accordingly, [appellant]
driving
was not
green
35 in
Volvo
Interstate
a.m.,
harmed
the trial
ruling.3
court’s
San Antonio at 1:00
he had a
because
single
hard time
in a
staying
lane of traffic.
of appeals
The court
affirmed the trial
opinion
The officer
appel-
formed
judgment.
court’s
lant was intoxicated because of
alcohol
his
II.
breath,
eyes,
his bloodshot
his slurred
demeanor,
possible
There
speech,
inability
pur
and his
are three
poses for the
alphabet correctly. According
recite the
voir dire examination of veni
officer,
to the
said
is “a
The
is
appellant
purpose
that he
remen.
first
to elicit infor
appel-
drunk.” The evidence showed that
mation
would establish
basis for
Sanchez,
omitted).
slip op.
7H
pur-
And the third
emptory challenges.7
the venireman
challenge
cause because
necessarily
legally legit-
pose
serving
is
legally
from
disqualified
is
—albeit
jurors on
indoctrinate the
imate one —is to
one of
prejudiced
against
biased or
theory of the case and
estab-
party’s
parties
aspect
relevant
prospective
rapport
lish
with the
This
law.4
function furthers
defen-
practical
important
This is
members.
(and society’s
right
constitutional
dant’s
the defen-
to both
State and
interest
in)
“impartial” jury.5
interest
The sec-
dant,8
it has neither
constitutional
but
the intelli-
purpose
ond
said to facilitate
this
dire for
statutory
nor a
basis. Voir
challenges which
gent
use of
judge’s
entirely
within the
purpose
stated,
“exercised without
reason
discretion,
prohibit
may permit
he
being subject
inquiry and without
without
appropriate.
it as
deems
he
This function
court’s control.”6
has stat
Supreme
further both the defendant’s
The Texas
Court
right
scope
permissible
that the
of a
prosecution’s statutory
per-
make
ed
35.16;
impressions
upon
unaccount-
the 'sudden
art.
Sadler
Proc.
Tex.Code Crim.
(Tex.Crim.
apt to
prejudices
S.W.2d
& 3
able
we are
conceive
n.
*5
another,’
App.1998) (noting
gestures
upon
both
and
that
defendant
the bare looks and
of
associations,’
challenge
juror
may
juror’s
upon
cause
the
for
a
'habits and
or
against
prejudice
juror’s]
that
feeling
questioning [a
has a bias or
the law
that
bare
'the
rely
stating
party
upon;
provoke
either
is entitled to
a
sometimes
resent-
indifference
''[bjias
ment,’ ") (citations omitted).
against
con
that
the law refusal to
apply the
It exists
sider or
relevant
law.
35.14;
venireperson’s
opinions
Cannady
when a
or
beliefs
7. Tex.Code Crim. Proc. art.
205,
impair
State,
prevent
substantially
(Tex.Crim.App.
or
the
'would
210
v.
11 S.W.3d
performance
juror
2000)
helps
as a
accor
a
("asking questions
of his duties
dire
on voir
”);
peremptory
dance with his instructions and oath’
party
intelligently
his
to
exercise
522,
(Tex.
Likewise,
529
challenges.
being
Smith v.
allowed to
not
(a
exercise”);
Crim.App.1995)
prospective juror
questions hampers
with bias
proper
that
316,
ask
prejudice against
parties
or
the
in the case
325
Barnes v.
cause).
("Article
must
for
ve
Crim.App.1994)
provides
be excused
35.14
a
potential jurors
hicle with which to exclude
Illinois,
719, 727,
Morgan
5. See
v.
504 U.S.
prejudiced
are
that an advocate believes
2222,
(stat
(1992)
112
119
S.Ct.
L.Ed.2d 492
Subject
against
to
con
his cause....
the
"
ing
right
jury
guarantees
that
‘the
trial
35.261, we
have held
straints of Article
criminally
by panel
accused a fair
a
assign
exercising
party need
a reason for
”
jurors’
impartial,
of
"indifferent”
and that
strikes”).
his
defendant,
provided
"if a
is to be
regardless of whether the Sixth Amendment
See,
Litigation
e.g., 5
Dorsaneo,
Texas
William
it,
requires
impartial
stand
and
must
(2005).
§
Dorsa-
Professor
120.02[1]
Guide
indifferent
the extent commanded
neo notes:
Amendment”) (citing
v.
Sixth
Turner
Louisi
im-
Counsel should not underestimate
ana,
466, 471-72,
S.Ct.
13
379 U.S.
85
during
portance
appearance and conduct
of
(1965)
quoting
v.
L.Ed.2d
and
Irvin
dire,
a
endeavor to
the voir
and must
create
717, 721-22,
Dowd,
366 U.S.
81 S.Ct.
impression. The task at
first
favorable
(1961)).
L.Ed.2d 751
gleaning of
the mere
hand is more than
Alabama,
202, 220,
exercising
helpful to counsel in
information
6. Swain
380 U.S.
(1965)
challenges against
jurors. Added
(noting that
unwanted
S.Ct.
not proper.10 (b) particular opinion,13 attitude even The defendant has a constitution meets challenge right al a trial “by impartial jury.”11 requirement, cause if it also includes facts Thus, purpose for prohibiting improper necessary addition to those to establish questions by either the State challenge for cause.14 An improper com or the defendant is to ensure that the question attempts mitment to create a bias will open listen the evidence with an or prejudice in the venireman before he impartial mind—a mind that with evidence, has heard the whereas out prejudice bias or render a ver question attempts to discover a —and dict based that evidence. Commit preexisting prejudice. venireman’s bias or ment require venireman to III.
promise that he will base verdict *6 case, course of action on specific some set of In appeals this the court of evidence, facts before he has heard never addressed whether the to Id. eveiy person may afford to and who each courts, a have cause for trial in our a fair See, e.g., 9. Babcock v. Northwest Memorial impartial trial. This can be done 705, (Tex.1989)("A Hosp., 767 S.W.2d 709 by having juror the mind of each who sits litigant broad latitude allowed a should be to life, pass judgment upon liberty to the during voir dire en examination. This will rights entirely of a suitor free from bias or litigant preju able the to discover bias or prejudice. In order to determine whether by potential jurors dice perempto the so that person may juror as a the be called who challenges exercised”). ry may intelligently be possesses necessary qualifications, the case, prejudged whether he has the 10. Atkins 789 bias, prejudice mind his is free from the Crim.App.1997); Allridge v. right questions, suitor has the to ask him ("an (Tex.Crim.App.1991) attorney 480 may the answer to which tend show he attempt prospec cannot to bind or commit a cause, may challenged be for or disclose a juror tive to a hypothetical verdict on a based state of which the facts from suitor facts”). set of proper reject juror peremptorily. such (1873). People, Lavin 69 Ill. 304-05 ("In 11. VI U.S. Const. Amend. all criminal prosecutions, enjoy right the accused shall the (Tex.Crim.App.2001). 12. S.W.3d 177 trial, by jury impartial to a ... an of the (“for wherein crime have Standefer, district shall S.W.3d at 181 com- committed”); 1, § been art. question proper, Const, mitment to be one of the Tex. ("In prosecutions all criminal the accused question give possible must answers to speedy public by impar- cause”). shall have an challenge rise to a jury"). long policy tial It has been the of law American 14. Id. that, State com- fact, “[t]he in this were, argues in im objected appellant which Instead, law.” panel to follow bad the entire proper questions.15 commitment mitted true, every of harm. then straight the issue it moved that shown be Were appeals court of argues least Appellant jury might, at juror sat on the who the harmless-error in to use failing erred against defen- theory, in be biased 44.2(b) in Rule of analysis set out peremptory an extra Providing dant. We Appellate Texas Rules of Procedure.16 problem. clearly not cure strike would The relied exclu agree. “asking counsel Further, argues appellant, State,17 held sively upon Anson v. futile, jurors is objectionable point out that, erroneously pro when trial court agreed all because proper ques hibits a defendant’s improper commitment prosecutor’s erroneously a defendant’s tioning or denies as panel on to serve were left law cause, reviewing courts challenge Thus, solely jurors.” reliance potential for harm. four-prong should test apply when test will not suffice upon the Anson test, ap as out the court of That set ques- commitment improper purportedly “only is harmed peals, is that a defendant aas jury to the posed panel tions are (1) all of he exhausts his Therefore, turn to we must whole. (2) more chal requests he challenges, Tex.R.App. 44.2(b). P. rule out in set (4) (3) denied, he lenges, request is 44.2(b), reviewing objectionable person an seated Under Rule identifies potential on whom he would have exer harm courts should assess the peremptory challenge.”18 cised a ques commitment improper the State’s focusing upon whether biased tioning by Although the Anson test assist implicitly explicitly who had im- —one deciding whether error the State’s aspect promised prejudge en- questioning an case of the State’s because harmless, it jury panel tire was jury. sat on the questioning actually directly upon focused the evil to avoid- — is: was The ultimate harm prejudged ed: which has biased or, jury, impartial defendant tried an problem the law or facts. The any specific conversely, was analysis Anson context is that ad- this *7 by improper the State’s juror “poisoned” peremptory ditional strikes would not nec- or legal on issue questions commitment cure error if essarily improper Standefer important to the determina fact that was to questions commitment were addressed or tion of the verdict sentence? example, appellant the entire venire. For test, 44.2(b), applicable when is argues question what not Anson 15. The State that the applied group setting in this case harm standard should be is in conducted by questions the asked asking proper is irrelevant because prohibited is from defendant improper were prosecution commit- Thompson v. question panel); see also questions. questions It ment notes that 537, State, (Tex.App.-Houston 542 ad- the voir dire context should be error in pet.) (Applying rule no [1st Dist.] Tong before harm and cites dressed 44.2(b) deciding permitting error in (Tex.Crim.App.2000). Be 25 718 S.W.3d hypothetical pose improper State to question at may, before us that as it harmless). during panel voir dire was appropriate this is "what is the test time improperly when State is allowed to harm (Tex.Crim.App.1997). 203 S.W.2d 959 17. jurors to a set of facts?” commit 2; Sanchez, at op. WL slip 946704 16. See Rich *1, Tex.App. at *2-3. LEXIS 4001 (stating Rule (Tex.Crim.App.2005) single, specific There is no pensate rule for their on improperly use reviewing veniremen; courts should assess this committed question of harm. But factors to consider 6) timely whether the defendant assert- in determining whether a trial court’s er objectionable ed that a named venire- permitting ror in improp the State to ask actually man served be- questions er an commitment entire cause he had waste strikes on the panel over objection the defendant’s is jurors;21 improperly committed might harmful include: 7) whether is a there reasonable likeli- 1) unambig- whether were jury’s hood that the verdict or course uously improper attempted of action reaching a verdict or
commit one or more veniremen to a substantially sentence was affected specific action;19 verdict or course of by improper State’s commitment 2) many, if any, agreed how questioning during veniremen voir dire.22
to commit specific themselves to a not, course, This is an exhaustive verdict or course of action if the State reviewing exclusive list of factors that evidence;20 produced certain might Depending courts consider. 3) agreed whether the veniremen who circumstances, particular reviewing actually commit themselves served might entirely court additional dif- use jury;
on the
ferent factors
ques-
to assess the ultimate
tion
4)
of harm: was the
defendant tried
whether the defendant
peremp-
used
that had
him or
prejudged
some
tory challenges
to eliminate
or all
aspect of his case because the
had
of those veniremen who had commit-
committed
improperly
one or more venire-
themselves;
ted
men to a verdict or
action
course of
before
5) whether the defendant exhausted all
hearing
evidence?
of his peremptory challenges upon
requested
those veniremen and
addi-
of appeals
Because
has not had
peremptory
tional
challenges
opportunity
com-
er-
to conduct a harmless
instances,
appel-
In
jury,
it is difficult for
ased veniremen from the
but was unable
courts,
judges, attorneys,
late
much less trial
to strike all of
because he was denied
them
specific
or veniremen
determine
sufficient
strikes to do so.
question
is
is not
out
question.
22.This
the same harmless error test set
phrased ambigu-
If
Rich,
ously
tors this case to the
judgment and remand proceedings. for further
JOHNSON, J., in the concurred result.
WOMACK, J., opinion concurring filed a KELLER, P.J., joined.
in which HERVEY, JJ„ are not
MEYERS and
participating.
WOMACK, J., concurring, in which P.J.,
KELLER, joined. join opinion of the Court with
I
understanding para that first two (ante, II
graphs opinion in Part
at-) say that voir dire examina do justified the second and third
tion are “possible purposes”
the three opinion author of has
mentioned. The view,
joined I have out else set
where, pro the peremptory-challenge justify party’s question
cedure does not other than
ing about matters Barajas qualifications
their serve. See (Tex.Cr.App.
2002) (concurring opinion). And I feel no thinks
sure that member of Court “indoctrinat[ing] jurors” legit purpose.
imate PILLITTERI, al., Appellants,
Pat et BROWN, Appellee.
William V.
No. 05-02-01486-CV. Texas, Appeals
Court
Dallas.
April 30, 2005.
Rehearing June Overruled