NO. 415-99








Womack, J., filed a concurring opinion, in which Keller, P.J., and Cochran, J., joined.


In overruling Nunfio v. State, 808 S.W.2d 482 (Tex. Cr. App. 1991), the Court discusses the two cases on which the Nunfio Court relied: Abron v. State, 523 S.W.2d 405 (Tex. Cr. App. 1975), and Hernandez v. State, 508 S.W.2d 853 (Tex. Cr. App. 1974). I agree with the Court's analysis of Abron and the Due Process Clause, ante at 6-8. It may be added that the prohibition of discrimination on the basis of race that is embodied in the Due Process Clause is part of "the law applicable to the case upon which the defense is entitled to rely," Code of Criminal Procedure article 35.16(c)(2). Therefore the questions about racial prejudice in Abron were relevant to a challenge for cause that a juror was disqualified. This distinguishes the voir-dire question in Nunfio from that in Abron.

The same is true of the question in the1974 Hernandez decision, which may be called "Hernandez I." It is true that the Court in Hernandez I evaluated the question for its ability to inform a peremptory challenge. But after the retrial of Hernandez, we held in "Hernandez II," 563 S.W.2d 947, 950 (Tex. Cr. App. 1978), that the juror's "responses [to the same question] effectively demonstrated bias against the appellant." The answer to the question showed that the juror was disqualified under Code of Criminal Procedure article 36.16(a)(9) ("That he has a bias or prejudice in favor of or against the defendant"). (1) Here again the Nunfio Court relied on a case involving a question that was relevant to a challenge for cause.

The Nunfio question had no such relevance to the jurors' qualifications. To characterize such questions as "proper," so that the trial court has no discretion to disallow them, makes it impossible for courts to limit voir dire to its central purpose: the qualification of the jury.

The right "to be heard by counsel" in the Texas Constitution (article I, section 10) may include the right to have counsel address the venire members individually. But it is a different issue whether there is a right for counsel to ask questions that are not relevant to the juror's qualifications.

The leading case for a right to ask questions that only inform the exercise of peremptory challenges is Houston & Texas Central Ry. v. Terrell, 69 Tex. 650, 7 S.W. 670 (1888). In that personal-injury case the trial court sustained objections to questions of whether the jurors "knew anything about the facts of the case" or "had made up their minds about the case." Id. at 652, 7 S.W. at 670-71. The Supreme Court held that jurors who had prejudged the case were disqualified under the relevant statute. Id. at 653-54, 7 S.W. at 671-72. Therefore it was error to disallow questions that went to that ground of disqualification.

Before so holding, the court observed in dicta (id. at 653, 7 S.W. at 671):

The question then recurs, did the defendant have the right to demand that the jurors should answer the questions propounded? We think it had the right. In the first place, it was entitled to six peremptory challenges; and, if for no other reason, counsel should have been allowed to ask the questions in order that he might judiciously exercise this right. It must frequently occur that neither the party nor his counsel knows the jurors, and has no means of ascertaining their antecedents, surroundings, and feelings, except by an examination on their voir dire. The doctrine that the examination should be allowed in order to the intelligent exercise of the right of challenge, is pointedly held by the supreme court of Missouri in the case of State v. Mann, 83 Mo. 589, in an opinion well supported by the authorities which are there discussed.

This Court did the same thing in Barnes v. State, 88 S.W. 805 (Tex. 1905), a decision that was not officially reported. Barnes, accused of violating the local-option liquor law, was tried before a jury comprising men who either had served on the jury that convicted him of essentially the same charge the day before, or who had stayed in the courtroom to hear the evidence in that trial. At the second trial he was not allowed to ask the veniremen whether they had a fixed opinion if the case presented similar facts. We said, "If the proof showed the two cases arose out of the same transaction or exactly similar transaction and the facts were the same, it occurs to us that it would be a cause of challenge." Id. at 807. We had so held in the leading case of Shannon v. State, 34 Tex. Crim. 5, 28 S.W. 540 (1894). Accord, Gilmore v. State, 37 Tex. Crim. 81, 38 S.W. 787 (1897).

The Barnes Court then added (ibid.):

But even conceding that it would not be [a cause of challenge], still appellant had the right to question the juror upon the matter inquired about, in order that he might intelligently exercise his right of peremptory challenge. Gilmore v. State, 37 Tex.Cr.R. 81, 38 S.W. 787. The record does not show that either of said jurors served on the jury on the trial of this case, or even that appellant exhausted his peremptory challenges; but we know that he had but three peremptory challenges, and there were nine of these jurors subject to this objection. Evidently some of them must have sat upon the jury. On the full investigation of the matter, it might have appeared that the jurors were not at all disqualified; that the cases arose out of different transactions, and in their essential features were not similar. But the inquiry, as stated before, should have been permitted.

The citation of the Gilmore case was inappropriate to this discussion. That case was about challenges for cause, and it had nothing to do with the exercise of peremptory challenges.

More important is the obviously fallacious reasoning in this paragraph. The Court said that, even if the jurors were not disqualified because of the evidence they heard in the previous trial, the questions were justified for their value in exercising peremptory challenges. But the questions were relevant to the jurors' qualifications even if the answers would not have proved they were disqualified. They were proper because they went to the jurors' qualifications. There was no reason to consider whether the questions had an independent justification; they could inform the exercise of peremptory challenges. In this fashion did Barnes introduce the notion that in a criminal case it could be error to deny a question that was relevant to a peremptory challenge, but not a cause of challenge -- although the issue was not in the case.

From the dicta in Houston & Texas Central and the illogical statement in Barnes have grown the doctrine of a right to ask questions to intelligently exercise peremptory challenges. That the doctrine rests on dicta and fallacy may not be a sufficient justification to abandon it, and I do not say that it is sufficient.

More important is the failure of the courts to consider the differences between the right to a qualified jury and the right to eliminate unfavorable jurors. "[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." Jones v. State, 982 S.W.2d 386, 393 (Tex. Cr. App. 1998). The requirements of jurors' qualifications are in part constitutional and in part statutory. Article 35.16 presents an exclusive list of grounds for disqualification. Butler v. State, 830 S.W.2d 125 (Tex. Cr. App. 1992). Questioning about these grounds is essential to attaining a qualified jury.

The statutory provision of peremptory challenges provides a method of obtaining a more favorable jury, but it does not include a procedure of asking questions to implement the use of the challenges. There is no right to a favorable jury. That is why our law does not permit a party to get a prospective juror's commitment to decide an issue of fact or punishment. I would say that, similarly, there is no right to ask a juror about his views or sentiments on particular issues of fact or punishment. When the Houston & Texas Central and Barnes courts shifted from one right to another without considering their differences, they seemed to assume that they were equal, but they did not consider whether or why that should be so.

Another problem with the right to ask peremptory-challenge questions is that the doctrine has an inherent flaw that makes it impossible to implement. Such a doctrine cannot co-exist with the doctrine that it is improper to ask a jury to commit to render a particular decision on particular evidence. As the Court points out, ante at 5, the closer a question comes to violating the latter doctrine, the more valuable it is in intelligently exercising peremptory challenges. It is literally impossible to apply these doctrines in a rational and predictable way.

Since the doctrine was established, courts have adopted juror questionnaires that provide the parties with personal information about the members of the venire. (In 1999 the legislature enacted a statute to require that all courts use a standard questionnaire that requires jurors to provide personal information. See Government Code section 62.0132.) The questionnaires elicit information about a venire member's name, sex, race, age, residence and mailing addresses, education level, occupation, place of employment, marital status, and a spouse's employment information. See id. The model form that was developed as the statute required also elicits information about telephone numbers and previous jury service. Thus the parties can obtain some information for the intelligent exercise of peremptory challenges without asking questions.

Given the inadequate jurisprudential basis for this doctrine, its irreconcilable conflict with another doctrine, the impossibility of its predictable application, the effect it has in unduly lengthening the process of jury selection, and the development of alternate sources of information, I would renounce it. From the jury questionnaires, the observation of the venire members, and the extensive questioning by counsel on causes for challenge that already characterizes our practice, the parties have a great deal of information to exercise their peremptory challenges intelligently. There is no need or justification for a right to ask other questions. I would hold that it is not error for a trial court to prevent counsel from asking questions that are irrelevant to a challenge for cause.

En banc.

Delivered June 26, 2002.


1. The question was relevant to other grounds of disqualification as well, such as that "there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant as would influence him in his action in finding a verdict," Tex. Code Crim. Proc. art. 35.16(a)(10). The juror twice specifically admitted having such a conclusion. See 563 S.W.2d at 949.