NO. 1430-98







Keller, J., delivered a concurring opinion..


The question in the present case is whether Texas Code of Criminal Procedure, Article 44.46(2) violates Article XVI 2 of the Texas Constitution. I would hold Article 44.46(2) to be constitutional in its entirety.
A. The Court of Appeals' Opinion

The Court of Appeals held that Article 44.46(2) violated Article XVI 2 of the Texas Constitution because the statute "allows juries to be empaneled with persons who have been 'convicted of bribery, perjury, forgery or other high crimes,' thereby destroying the jury's purity." Perez v. State, 973 S.W.2d 759, 762 (Tex. App.--Corpus Christi 1998). The court further stated that the "statute flies in the face of article XVI, section 2, the purpose of which is to prohibit felons from service on juries." Id. In its discussion, the Court of Appeals also briefly referred to Article I 15, which refers to the "purity and efficiency" of the right to trial by jury. Id.

B. The relevant provisions

Article XVI 2 of the Texas Constitution requires the Legislature to enact laws excluding persons convicted of certain crimes from enjoying certain benefits enjoyed by the citizenry, including service as a juror:

Laws shall be made to exclude from office, serving on juries, and from the right of suffrage, those who may have been or shall hereafter be convicted of bribery, perjury, forgery, or other high crimes.

The Legislature enacted a law granting the State and the defendant in a criminal case the right to challenge for cause a prospective juror who "has been convicted of theft or any felony." Texas Code of Criminal Procedure, Article 35.16(a)(2). The Legislature further provided that conviction for a theft or felony is an absolute disqualification, and that a juror subject to such a disqualification may not be seated even by consent of the parties. Texas Code of Criminal Procedure, Article 35.19. But the Legislature also specified that the service of such an absolutely disqualified person would result in reversal of a conviction only under certain circumstances:

A conviction in a criminal case may be reversed on appeal on the ground that a juror in the case was absolutely disqualified from service under Article 35.19 of this code only if:

(1) the defendant raises the disqualification before the verdict is entered; or

(2) the disqualification was not discovered or brought to the attention of the trial court until after the verdict was entered and the defendant makes a showing of significant harm by the service of the disqualified juror.

Article 44.46. The question we confront is whether this limitation on the ability of an appellate court to reverse a conviction violates a constitutional proscription against jury service of persons convicted of certain crimes.

C. Article I 15

First, the Court of Appeals' reliance upon Article I 15 of the Texas Constitution in support of its holding is misplaced. That provision states in relevant part: "The right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency." Id. (emphasis added). The words "purity" and "efficiency" relate to the right to a trial by jury, not to the jury itself. The purity of the right is maintained by providing the right in all cases for all issues that the jury is required to decide (assuming the right has not been waived). The efficiency of the right refers to the procedures for asserting the right. We should keep in mind that 15 applies to both criminal and civil cases. The "efficiency" of the right to a jury trial may be more significant for civil cases, in which the right is waived unless a jury trial is timely asserted and a jury fee is paid. Tex. R. Civ. P. 216.

"The right to a trial by jury means, of course, the right to a trial by an impartial jury. See Pierson v. State, 18 Tex. App. 524 (1885). Within the limits of denying the parties an impartial jury, the legislature may prescribe the procedure for impanelling the jury and the qualifications of jurors." Interpretive Commentary, Vernon's Ann. Tex. Const., Article I 15, p. 558 (emphasis added). I understand this to mean that the qualifications for jury service are not part of the constitutional right to a trial by jury protected by Article I 15.

Moreover, the exclusion of criminals from the jury is addressed explicitly by a separate constitutional provision, Article XVI 2. Presumably, the framers of the Constitution would not have believed that a separate provision was necessary if the right to a jury trial also encompassed the exclusion of criminals from the jury. Or at least, the framers would have addressed the issue within the same constitutional provision, instead of addressing the topic not merely in a different section, but in an entirely different article. I conclude that the presence of a convicted felon on the jury does not implicate a party's right to a jury trial under Article I 15.

D. Article XVI 2

The issue here is whether Article 44.46(2) violates Article XVI 2 of the Texas Constitution. The Court of Appeals' opinion suggests that the statute permits the empaneling of certain criminals in violation of this constitutional provision. But, as noted by Justice Dorsey, Article XVI 2 does not itself prohibit the empaneling of any person as a juror. The provision directs the Legislature to enact laws to prohibit the empaneling of certain persons. Perez v. State, 973 S.W.2d at 763 (Dorsey, J. dissenting). The Legislature has followed that mandate by enacting Articles 35.16(a)(2) and 35.19. In doing so, the Legislature went further than mandated by including all felonies, and not just "high crimes." These enactments establish that persons with a theft or felony conviction are absolutely disqualified from serving on the jury and cannot be empaneled even if the parties consent. So, the constitutional provision's requirements have been fulfilled, and nothing further is required.(1)

Article 44.46(2) does not in any way "undo" the prohibitions on jury service established by the Legislature. The statute does not authorize the empaneling of felons for jury service; it simply addresses whether the defendant will obtain a remedy if a felon is in fact empaneled.(2) In such a situation, the consequence that Article XVI 2 was designed to prevent has already occurred: the criminal has served. Whether the defendant obtains some kind of a remedy as a result is, at best, a collateral question.

In some ways that question is similar to one we decided regarding Article I 9. Article I 9 prohibits unreasonable searches and seizures. Whether a violation of that provision (e.g. an unreasonable search) results in the suppression of evidence obtained as a result of that violation (i.e. employment of an exclusionary rule) is a separate, collateral issue not encompassed by the right granted in that constitutional provision. See Hulit v. State, 982 S.W.2d 431, 437 (Tex. Crim. App. 1998)(citing Welchek v. State, 93 Tex. Cr. 271, 247 S.W. 524 (1922)(Article I 9 contains no exclusionary rule)). Reversing a conviction after a felon has served on the jury is analogous to applying an exclusionary rule to the fruits of an illegal search in that both situations rely upon the notion of deterrence to justify the proposed rule. Exclusionary rule advocates would attempt to deter police misconduct by excluding the fruits of their misconduct from criminal trials. Likewise, reversing a conviction already obtained can serve the purpose of prohibiting jury service by felons only (if at all) by deterring the service of felons on juries in the future. In holding that Article I 9 contains no exclusionary rule, we rejected the notion that the Texas Constitution necessarily incorporates deterrence-based remedies for violations of constitutional rights.

Moreover, there are far more persuasive reasons for excluding deterrence-based relief under Article XVI 2 than were available for Article I 9. First, the Constitution does not affirmatively prohibit jury service by felons; rather, Article XVI 2 directs the Legislature to enact laws doing so. Thus, the Constitution invests in the Legislature the ability to determine the methods used to prohibit jury service by felons. Whether to employ a deterrence-based approach is a matter left to the Legislature, and the Legislature can, in its discretion, determine that certain deterrence-based approaches are inappropriate methods of attempting to prohibit unauthorized jury service.(3)

Second, the Constitution does not confer upon the defendant a right to exclude criminals from the jury. Article XVI 2 does not focus solely upon jury service (the provision also addresses the ability to hold office and vote) and that provision does not confer a right upon litigants. Instead, the section calls for laws excluding certain persons from the enjoyment of several civic activities, including jury service. The focus is upon the prospective juror's rights, not upon the rights of a party to a criminal or civil lawsuit. Article XVI 2 is, thus, not designed to confer rights upon litigants but is designed to limit the rights of prospective jurors by excluding certain persons from jury service based upon conviction for certain crimes. The Constitution confers no standing upon litigants to challenge service by such criminals (and thus obtain reversals), nor does the Constitution require that the Legislature confer such standing. If the Legislature chooses to confer standing to mount such a challenge, it is free to place conditions and restrictions upon the standing conferred. To the extent that the Legislature has given a criminal defendant the right to obtain a reversal of his conviction as a result of the service of a thief or felon on the jury -- a right the Legislature was not required to grant -- the Legislature is also empowered to place limits upon that right and to outline the conditions for exercising that right.

Further, Article 44.46(2) merely establishes a standard for assessing harm for a statutory violation. We have recognized in a wide variety of contexts that errors -- both constitutional and non-constitutional -- are subject to a harm analysis. Only federal constitutional errors labeled by the United States Supreme Court as "structural" are immune from such analysis. Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997). We have recognized the Legislature's authority to establish harm standards for statutory violations, and to vary the standard of harm depending upon whether the party objected at trial. Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1985)(opinion on rehearing)(statutorily imposed harm analysis for jury charge error).

Although Article XVI 2 is a constitutional provision, that provision does not establish a constitutional prohibition against jury service; instead, the provision requires merely that the Legislature establish a statutory prohibition. A good example of a contrasting provision is Article I 15, which first establishes a constitutional right to a jury trial ("The right of trial by jury shall remain inviolate") and then requires the Legislature to pass laws enforcing that right ("The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency"). So, service by a felon who falls within one of the categories outlined in Article XVI 2 is a mere statutory violation, for which the Legislature can prescribe a harm analysis -- as it has done. Even if service by a felon were considered to be a constitutional violation, however, it would not be a constitutional violation of the defendant's rights, as explained above. The only right conferred upon the defendant is of statutory origin, found in Articles 35.16 and 35.19, granting the defendant the ability to assert challenges for cause.

I concur in the Court's judgment.


DATE DELIVERED: February 9, 2000


1. The majority's discussion of the meaning of "other high crimes" is unnecessary to the disposition of this case.

2. And in fact, Article 44.46(2) applies only after a verdict has already been returned, and consequently, dismissing the unauthorized juror from the panel is no longer an option.

3. The harm standard contained in Article 44.46(2) may, arguably, have been designed to encourage the earlier exposure and removal of unauthorized jurors.