IN THE COURT OF CRIMINAL APPEALS

OF TEXAS




NO. 1353-99

SAMUEL LOVERT JOHNSON, Appellant

v.



THE STATE OF TEXAS




ON THE APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE 14TH COURT OF APPEALS

HARRIS COUNTY


Price, J., delivered the opinion of the Court in which Holland, Womack, Johnson, and Holcomb, J.J., joined. Keller, P.J., filed a concurring opinion in which Keasler, J., joined. Johnson, J., filed a concurring opinion. Meyers, J., concurs. Hervey, J., filed a dissenting opinion.



Harm for the erroneous denial of a challenge for cause is determined by the standard in Rule of Appellate Procedure 44.2(b). (1) Before promulgation of Rule 44.2(b), harm was evident in the record when the appellant used a peremptory challenge to cure the erroneous denial, exhausted his peremptory challenges, was denied a request for an additional peremptory challenge, and identified an objectionable venire member who sat on the jury. Today we hold that Rule 44.2(b) does not change the way that harm is demonstrated for the erroneous denial of a challenge for cause.

The appellant was charged with aggravated robbery. See Tex. Pen. Code 29.03. During voir dire in the appellant's trial, two venire members, Kelley and Clevenger, stated that they could not consider the minimum punishment of five years for a defendant found guilty of aggravated robbery as a principal. The trial court denied the appellant's challenges for cause. The appellant used peremptory challenges to strike Kelley and Clevenger, and the trial court refused his request for two additional peremptory challenges. Before the jury was seated, the appellant named two additional venire members who were objectionable to him. These two venire members served on the jury.

The jury convicted the appellant of aggravated robbery and, after finding two enhancement allegations true, the jury assessed as punishment seventy-five years in prison.

In an unpublished opinion, the Court of Appeals affirmed the appellant's conviction. Johnson v. State, No. 14-95-00860-CR, (Tex. App.-Houston [14th Dist.] Mar. 27, 1997) (not designated for publication). We granted the appellant's petition for discretionary review, reversed the Court of Appeals's judgment, and remanded the case for a harm analysis under Texas Rule of Appellate Procedure 44.2(b). Johnson v. State, 982 S.W.2d 403 (Tex. Crim. App. 1998) (holding that the trial court erred by erroneously denying the appellant's two challenges for cause).

On remand, the Court of Appeals issued an opinion affirming the appellant's conviction. Johnson v. State, 996 S.W.2d 288 (Tex. App.-Houston [14th Dist.] 1999). The Court held that under Rule 44.2(b) the appellant has the burden of showing that some substantial right has been affected by the error, and because the appellant failed to show any infringement of his substantial rights, the error must be disregarded. Id. at 290.

We granted the appellant's petition for discretionary review to determine whether the Court of Appeals misinterpreted our directive and whether the Court of Appeals erred in disregarding the error pursuant to Rule 44.2(b) when the appellant was prohibited from preserving the testimony necessary to determine whether his substantial rights were affected. (2)

In his first ground for review, the appellant complains that the Court of Appeals violated Rule of Appellate Procedure 47.1 (3) by failing to address the argument that the harm analysis should be performed pursuant to former Rule 81(b)(2) and not current Rule 44.2(b). The appellant argues that, because the former rule was in effect at the time of his trial and his direct appeal, the former rule should apply to his case. The Court of Appeals properly addressed the appellant's argument, noting that it was "obliged to comply with the orders of the Court of Criminal Appeals and follow its interpretation of the law." Johnson, 996 S.W.2d at 289. The Court of Appeals thereby rejected the appellant's argument. (4) The appellant's first ground for review is overruled.

In the appellant's second ground for review, he complains that the Court of Appeals erred in disregarding, pursuant to Rule 44.2(b), the trial court's erroneous denial of two challenges for cause. Specifically he argues that the burden to show harm should not be on the appellant because he is prevented by Rule of Evidence 606(b) (5) from preserving relevant testimony necessary to demonstrate that his substantial rights were affected. Also he argues that harm was shown because, during voir dire, he identified two objectionable venire members who eventually sat on the jury.

The appropriate standard of harm is to disregard an error unless a substantial right has been affected. Tex. Rule App. P. 44.2(b). We have held that a substantial right is affected when the error has a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). We adopted this language from the Supreme Court's holding in Kotteakos v. United States, 328 U.S. 750 (1945). In Kotteakos, the Supreme Court explained:

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 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 itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.



Id. at 764-65 (citation and footnote omitted).

We agree with the appellant that no burden to show harm should be placed on the defendant who appeals. In Ovalle v. State, 13 S.W.3d 774 (Tex. Crim. App. 2000), we explained that "no party should have the burden to prove harm from an error, and there ordinarily is no way to prove 'actual' harm." Id. at 787. In that case we held that the appellant did not have the burden to prove harm in the context of jury charge error under Code of Criminal Procedure Article 36.19. Rather, it is the duty of the reviewing court to assess harm from the context of the error. Id. The rationale for the decision in that case was that determining the existence of harm from an error is not the same as proving facts at trial. Id. (citing Roger Traynor, The Riddle of Harmless Error 25-26 (1970)). We explained that the parties may assist by suggesting how the appellant was harmed (or not), but it is the responsibility of the reviewing court to decide whether it is likely that the error had some adverse effect on the proceedings. Id. (quoting Wayne R. LaFave & Jerold H. Israel, Criminal Procedure 1165 (2d ed. 1992)).

The Supreme Court has adopted the same rule in the context of Federal Rule of Criminal Procedure 52(a). Our harmless error rule is based on that federal rule. See Carranza v. State, 980 S.W.2d 653, 657 (Tex. Crim. App. 1998). Therefore we look to the Supreme Court for guidance in interpreting Rule 44.2(b).

The Supreme Court has explained that, in the federal system, it is the responsibility of the appellate court to determine whether a trial error affected the resulting judgment. In O'Neal v. McAninch, 513 U.S. 432, 437 (1995), the Court explained that there is a difference between a trial court's task of managing the admission of evidence and the reviewing court's task of applying a legal standard to a trial that is already complete.

As an initial matter, we note that we deliberately phrase the issue in this case in terms of a judge's grave doubt, instead of in terms of "burden of proof." The case before us does not involve a judge who shifts a "burden" to help control the presentation of evidence at a trial, but rather involves a judge who applies a legal standard (harmlessness) to a record that the presentation of evidence is no longer likely to affect.

Id. at 436. The Court quoted Justice Traynor for the proposition that

Whether or not counsel are helpful, it is still the responsibility of the . . . court, once it concludes there was error, to determine whether the error affected the judgment. It must do so without benefit of such aids as presumptions or allocated burdens of proof that expedite fact-finding at the trial.

Id. at 437 (citing R. Traynor, The Riddle of Harmless Error 26 (1970)). We find the Supreme Court's reasoning compelling and adopt this reasoning for application to Rule 44.2(b). We hold that it is the responsibility of the appellate court to assess harm after reviewing the record and that the burden to demonstrate whether the appellant was harmed by a trial court error does not rest on the appellant or the State.

Next we must address how a reviewing court determines whether a defendant was harmed when the trial court has erroneously denied one or more challenges for cause. As we explained above, substantial rights are affected when the error has a substantial and injurious effect or influence in determining the jury's verdict. King, 953 S.W.2d at 277. Denial of a proper challenge for cause is error because the makeup of the jury affects its decision.

Since 1944, harm has been demonstrated, (6) and the error held reversible, when the appellant (1) exercised his peremptory challenges on the venire member whom the trial court erroneously failed to excuse for cause, (2) exhausted his peremptory challenges, (3) was denied a request for additional peremptory challenges, and (4) identified an objectionable juror who sat on the case. See Wolfe v. State, 147 Tex. Crim. 62, 178 S.W.2d 274 (1944) (op. on reh'g).

The purpose of the peremptory challenge in Texas is to allow the accused or the State to remove a venire member without stating a reason therefor. Code Crim. Proc. art. 35.14. In Kerley v. State, 89 Tex. Crim. 199, 230 S.W. 163 (1921), the Court said of article 35.14's predecessor: (7)

It is the privilege of accused to exclude from service one whom, in his judgment is unacceptable to him. In conferring it, the law gives effect to the natural impulse to eliminate from the jury list not only persons who are rendered incompetent for some of the disqualifying causes named in the statute, but persons, who, by reason of politics, religion, environment, association, or appearance, or by reason of the want of information with reference to them, the accused may object to their service upon the jury to which the disposition of his life or liberty is submitted. In other words, the law fixes the number of challenges and confers upon the accused the right to arbitrarily exercise them. This right having been denied the appellant in the instant case, he having exercised all of the challenges the court would permit him to use, and having been forced to try his case before jurors who were objectionable and whom he sought to challenge peremptorily, the verdict of conviction rendered by the jury so selected cannot, we think, with due respect to the law, be held to reflect the result of a fair trial by an impartial jury, which it is the design of our law shall be given to those accused of crime.

Kerley, 89 Tex. Crim. at 201, 230 S.W. at 164-65 (citations omitted). The Court in Wolfe explained the harm of depriving the accused of a peremptory challenge.

If one of an accused's peremptory challenges could be taken away from him, why not five be taken, and if five, why not ten, leaving none, and all jurors be acceptable save unfair and partial ones.

Id. at 72, 178 S.W.2d at 279-80.

We disagree with the Court of Appeals's reliance on Ross v. Oklahoma, 487 U.S. 81 (1988). In that case the Court held that peremptory challenges are not a matter of federal constitutional dimension and requiring a defendant to cure the erroneous denial of a challenge for cause with a peremptory challenge does not violate the Constitution. Id. at 88. But this does not change the way that the Court of Criminal Appeals has interpreted state law. See Martinez v. State, 763 S.W.2d 413 n.2 (Tex. Crim. App. 1988).

We also disagree with the Court of Appeals's reliance on Jones v. State, 982 S.W.2d 386, 391 (Tex. Crim. App. 1998). In that case the Court held that "the erroneous excusing of a challenge of a veniremember will call for reversal only if the record shows that the error deprived the defendant of a lawfully constituted jury." (8) One rationale for this holding was that a defendant has no right to have a particular venire member serve on the jury. See Jones, 982 S.W.2d at 393. That is not the situation with which we are dealing in this case. A defendant has a right to not have a particular venire member on the jury if the venire member is challengeable for cause or the defendant exercises one of his peremptory challenges.

We hold that under the facts of this case (9) harm was shown for the erroneous denial of the appellant's challenges for cause because the record indicates that the appellant (1) used a peremptory challenge to remove the venire members, (2) exhausted his peremptory challenges, (3) requested and was denied additional peremptory challenges, and (4) identified two objectionable venire members who sat on the jury and on whom the appellant would have exercised peremptory challenges had he not exhausted his peremptory challenges to correct the trial court's erroneous denial of his challenges for cause.

Because the appellant was harmed by the trial court's error, he is entitled to a new trial. See Carson v. State, 6 S.W.3d 536, 539 (Tex. Crim. App. 1999). The judgment of the Court of Appeals is vacated, and the case is remanded to the trial court for a new trial.



Date Delivered: March 28, 2001.

Publish.

1. Rule of Appellate Procedure 44.2(b):



Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.

2. The exact grounds for review on which we granted the appellant's petition are:



(1) Whether the Court of Appeals misinterpreted the Court of Criminal Appeals' directive on remand and erred by refusing to consider and analyze appellant's point for review number one?



(2) Whether the Court of Appeals erred in disregarding the error pursuant to Tex. R. App. Proc. 44.2(b) where the appellant was statutorily prohibited from preserving the testimony necessary to determine whether his substantial rights were affected?

3. Rule of Appellate Procedure 47.1, in pertinent part, states :



The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal....

4. We note that this Court decided the same issue adversely to the appellant's position in Fowler v. State, 991 S.W.2d 258, 260-61 (Tex. Crim. App. 1998).

5. Rule 606(b) states:



Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the jury's deliberations, or to the effect of anything on a juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve.

6. In the past we have confused preservation of error and harm issues within the context of an erroneous denial of a challenge for cause. For example, in Harris v. State, 790 S.W.2d 581 (Tex. Crim. App. 1989), the Court explained that the steps listed in Payton v. State, 572 S.W.2d 677 (Tex. Crim. App. 1978), were required for the appellant to preserve error, even though the Court, later in the same opinion, said that reversal was warranted when the steps in Payton had been followed. Compare Harris, 790 S.W.2d at 581 ("In Payton v. State, 572 S.W.2d 677 (Tex.Cr.App. 1978), this Court summarized the requirements necessary to preserve error due to the trial court's denial of a defense challenge for cause of a prospective juror"), with id. ("Thus, in order to warrant a reversal by this Court for the trial court's erroneous denial of an appellant's valid challenge for cause it must be demonstrated that . . ."). And in Payton, we explained that "harm may be shown in the denial of challenge for cause by showing exhaustion of the defendant's peremptory challenges, denial of a request for additional peremptory challenges, and the seating of a juror upon whom the defendant would have exercised peremptory challenge." Id. at 680 (citing Hernandez v. State, 563 S.W.2d 947 (Tex. Crim. App. 1978)). Wolfe, the case on which the Court relied in Payton, also discusses the steps in the context of showing harm. See generally Wolfe, 147 Tex. Crim. at 70-75, 178 S.W.2d. 279-281.

7. The language of Article 35.14 remains the same as its predecessor, Article 690. See Kerley, 89 Tex. Crim. at 201, 230 S.W. at 164.

8. With its holding, the Court overruled Payton v. State, 572 S.W.2d 677 (Tex. Crim. App. 1978).

9. We do not assume that there will never be a case of harmless error when the record demonstrates that the appellant followed the steps above. Under the facts of this case, the record demonstrates that the appellant was harmed by the trial court's erroneous denial of two challenges for cause when the appellant lost the use of two peremptory challenges.