In this cause, the majority determines that felony driving while intoxicated is not a high crime because it is not a crime of moral turpitude akin to bribery, perjury and forgery and "does not even require a culpable mental state." The majority concludes that the juror, who had been convicted of felony driving while intoxicated, "was not constitutionally disqualified from serving; rather, the disqualification was statutory. As such, there is no conflict in the instant case between Art. XVI, 2 and art. 44.46, and the latter is not unconstitutional as applied to appellant." Ante, slip op. at 5. I believe that the majority's interpretation of the phrase "or other high crimes" in Art. XVI, 2 is too narrow.
The majority relies upon the principle of ejusdem generis to support its conclusion that "or other high crimes" means no more than " other crimes of moral turpitude."(2) Ante, slip op. at 4-5. Essentially, ejusdem generis means that when a general term follows a specific term or terms, the specific will govern the general. Ejusdem generis, however, is "not in and of itself a rule of interpretation, but an aid to interpretation, when the intention is not otherwise apparent." Thomas v. State, 91 S.W.2d 716, 722 (Tex. Crim. App. 1935)(Lattimore, J., dissenting). The aid should not be invoked "to restrict the operation of the act within narrower limits than the Legislature intended." Id. The doctrine of ejusdem generis is "only a rule of construction, to be applied as an aid in ascertaining the legislative intent, and cannot control where the plain purpose and intent of the Legislature would thereby be hindered or defeated." Hurt v. Oak Downs, 85 S.W.2d 294, 298 (Tex. App.-Dallas 1935, writ dism'd w.o.j.).
Instead, it is more significant that the framers used the disjunctive "or" in its list of subject offenses in Art. XVI, 2. When the framers separated "bribery, perjury, forgery" from "other high crimes" with the disjunctive "or," they established an alternative relationship between "bribery, perjury, forgery" and "or other high crimes."
[T]he disjunctive "or" usually, but not always, separates words or phrases in
the alternate relationship, indicating that either of the separated words or
phrases may be employed without the other. The use of the disjunctive usually
indicates alternatives and requires that those alternatives be treated separately.
It generally means that the terms joined by the disjunctive "or" must have
different meanings because otherwise the statute or provision would be
1A Sutherland Stat. Const. 21.14 (5th ed. 1993 & Supp. 1999).
Consistent with this rule of statutory interpretation, I believe the phrase "or other high crimes" in Art. XVI, 2 refers to all felonies regardless of whether they involve moral turpitude or dishonesty or false statements. This interpretation is consistent with several laws enacted by the Legislature pursuant to the framers' directive in Art. XVI, 2. The Legislature has enacted a rule stating that a person who has been finally convicted of a felony, from which that person "has not been pardoned or otherwise released from the resulting disabilities," is not eligible to be a candidate for, or elected or appointed to, a public office in this state. See Tex. Elec. Code Ann. 141.001 (a)(4). The Legislature has also decided that when a county officer is convicted by a petit jury for any felony or for a misdemeanor involving official misconduct, that conviction serves as an immediate removal of that county officer from office. See Tex. Loc. Gov't Code Ann. 87.031. The Legislature set out in the Code of Criminal Procedure that anyone convicted of, or under indictment or legal accusation for, theft or any felony, is absolutely disqualified from jury service, shall not be impaneled on a jury, and is subject to a challenge for cause by either party. See Tex. Code Crim. Proc. Ann. art. 35.16 (a)(2)and(3) and art. 35.19. See also Tex. Govt. Code Ann. 62.102 (7) and (8). Lastly, the Legislature has enacted a rule stating that a person is a "qualified voter" if he or she has not been finally convicted of a felony or, if so convicted, has met one of three statutory qualifications. See Tex. Elec. Code Ann. 11.002 (4)(A) and (B). From these statutes, I believe the Legislature has viewed the mandate of Art. XVI, 2 as enabling them to enact laws excluding felons from elective office, serving on juries and from the right of suffrage.
Interpreting "or other high crimes" as all felonies is also consistent with the interpretations of Art. XVI, 2 by other appellate courts of this state. In Welch v. State ex rel. Long, 880 S.W.2d 79 (Tex. App.-Tyler 1994, writ denied), the Tyler Court of Appeals concluded that a person who had been convicted of a felony was barred from holding public office by the provisions of both the Election Code and the enabling language of Art. XVI, 2. The defendant in Welch argued Art. XVI, 2 prohibited the removal of state officers for offenses such as felony DWI because "DWI is neither a crime of moral turpitude nor an offense which requires a mens rea, it cannot be considered a high crime as that term is used in the Constitution." Id. at 82.
The Tyler court explained why an individual who had been convicted for felony driving while intoxicated was subject to the provision of Art XVI, 2. It discussed that in ordinary usage, the phrase means nothing more than a serious or a grave crime. See id. The Tyler Court understood "or other high crimes" in the context of Art. XVI, 2 to mean felonies and concluded that the constitution did not bar the defendant's removal from public office. See id.
The state appellate courts have also discussed whether Art. XVI, 2 directs the Legislature to bar felons, generally, from serving on juries. In Easterwood v. State, 31 S.W. 294, 296 (Tex. Crim. App. 1895), this Court concluded that pursuant to the directive of Art. XVI, 2, if the "party offered as a juror has been convicted of a felony, he is debarred the privilege of suffrage." In R.R.E. v. Glenn, 884 S.W.2d 189, 191-93 (Tex.App.-Fort Worth 1994, writ denied), the Fort Worth Court of Appeals concluded that a party had not been afforded his constitutional rights if the jury included a person who had been convicted of a felony and had not been pardoned by the Governor. The court of appeals discussed the loss of the right to serve on a petit jury and whether it extended to all felons, not merely those convicted of crimes of moral turpitude, in terms of Art. XVI, 2. See id. The court of appeals concluded that "a party, whether he be a party to a civil action or a defendant in a criminal action, has not been afforded his constitutional rights if the jury composition in his case includes a person who has been convicted of a felony and has not been pardoned by the Governor." See id. at 193.
The majority believes that the framers of the Texas Constitution used the phrase "or other high crimes" in Art. XVI, 2 because it was distinguishable from their use of the term "felony" in Art. III, 14 or Art. VI, 5, and the majority contends that the framers, therefore, meant to exclude all felonies not involving moral turpitude from inclusion in the phrase "or other high crimes." See ante, slip op. at 4. I disagree. It is not unreasonable to conclude the framers selected the phrase "or other high crimes" simply because it was similar to the phrase "or other High Crimes and Misdemeanors" used in Art. II, 4 of the Federal Constitution.(3) The phrase "or other High Crimes and Misdemeanors" in the Federal Constitution is viewed as an older phrase of indefinite meaning, "which has been held to include such immoral and unlawful acts as are nearly allied and equal in guilt to felony, yet, owing to some technical circumstance do not fall within the definition of felony." Black's Law Dictionary (3d ed. 1933) 480; College Law Dictionary (2d ed. 1931) 381. The phrase in Art. II, 4 has been viewed as including felonies as well as "the more serious or aggravated misdemeanors; those which are nearly allied and equal in guilt to felony, but do not fall within its definition." Fimara v. Gardner, 85 A. 670, 672 (1913). Additionally, if the framers of our state constitution had meant for "or other high crimes" to mean only "high crimes of moral turpitude" or 'high crimes involving dishonesty or false statement," they would have included one of those phrases in the text of Art. XVI, 2. They, however, did not do so.
Lastly, the majority's view that "or other high crimes" means only other crimes of the same type as bribery, perjury or forgery has the potential to create problems. The language of the majority's opinion implicitly limits the definition of "or other high crimes" to those crimes which involve dishonesty or false statement. See n. 2, infra. If an individual is barred from seeking elective office or from voting because he is an unpardoned, convicted felon and the statutes set out above prevent him from holding office or voting, and if the felony for which he has been convicted does not involve dishonesty or false statement,(4) could he not complain based on the decision of the majority today? If Art. XVI, 2 only authorized the Legislature to enact statutes barring from office and the voting booth those who have been convicted of a crime involving dishonesty or false statement, could that individual complain of the denial of his rights to Equal Protection under the Federal Constitution? Could he not argue that our state constitution does not bar him as unfit from public office or the voting booth? Could he not argue that the Legislature has unjustifiably singled him out for loss of his rights, even though he has paid his debt to society and has been rehabilitated?
The majority fails to answer the issue before this Court in this matter - whether Article 44.46, section 2 of the Code of Criminal Procedure subverts the intent of Art. XVI, 2 of the Texas Constitution. In their effort to do so, I believe their novel interpretation of Art. XVI, 2(5) has created more potential problems than they have resolved.
This Court granted the State's petition for discretionary review(6) to examine the constitutionality of Art. 44.46(2). I would reverse the decision of the court of appeals because the Legislature's enactment of Art. 44.46(2) was a permissible decision to subject a non-structural trial error to harmless error analysis and was, therefore, not unconstitutional. A review of the factual history of this cause is necessary to adequately resolve the issue before this Court.
The trial court held a hearing on appellant's motion for new trial. At that hearing, appellant argued that one of his jurors, Jesus Garcia, possessed a prior felony conviction for driving while intoxicated. The trial court took judicial notice that Garcia was a convicted felon at the time of appellant's trial. The State stipulated that during voir dire the trial court asked the jurors if they had ever been convicted of a felony and Garcia failed to disclose his prior felony conviction. But the State also proved it did not learn Garcia had a prior felony conviction until 20 minutes after the jury returned its verdict.
At the hearing, appellant claimed that the trial court should grant him a new trial because Garcia had been "convicted finally of a felony." Relying upon Art. 44.46(2), the State responded that, because Garcia's felony conviction was not discovered nor brought to the attention of the trial court until after the verdict was entered, appellant had the burden to "show significant harm by the service of the disqualified juror." In the State's opinion, appellant had made no such showing. Appellant argued that Art. 44.46 conflicted with his right to trial by jury under the Sixth Amendment of the U. S. Constitution and under Art. I, 10 of the Texas Constitution. The trial court, however, declined to find that Art. 44.46(2) was unconstitutional and overruled appellant's motion for new trial.
A majority of the Corpus Christi Court of Appeals concluded Art. 44.46(2) was unconstitutional. Perez v. State, 973 S.W.2d 759, (Tex. App.-Corpus Christi 1998). The court reasoned that Art. 44.46(2) was inconsistent with the Texas "constitution's purpose to maintain the purity of the jury's composition of qualified persons." Id., at 762. In the court's opinion, Art. 44.46(2) destroyed the "purity" of juries by allowing people who had been convicted of "bribery, perjury, forgery or other high crimes" to be empaneled as jurors. Id. The court believed the instant case was particularly offensive because appellant was not at fault for being unaware of Garcia's status as a convicted felon. The court emphasized that Garcia served on the jury solely because of Garcia's "affirmative misrepresentation." See id. The court of appeals concluded that Art. 44.46(2) was incompatible with Art. XVI, 2 of the Texas Constitution "the purpose of which is to prohibit felons from serving on juries." Id.
The State urges this Court to reverse the decision of the court of appeals, arguing the Legislature enacted Art. 44.46(2) pursuant to its constitutional mandate to "pass such laws as needed to regulate [the right of trial by jury], and to maintain its purity and efficiency." Tex. Const. art. I, 15. The State argues Art. 44.46(2) is consistent with both of the interests of Art. I, 15 - purity and efficiency. The State claims that subjecting the instant violation of Art. XVI, 2 to the harm analysis set out in Article 44.46(2)does not fatally undermine the protection advanced by Art. XVI, 2.
The Corpus Christi Court of Appeals concluded the Legislature's decision to require a showing of "significant harm" before permitting a reversal under Art. 44.46 (2) did not "effect the constitution's purpose to maintain the purity of the jury's composition." Id., at 762. In reaching this conclusion, I believe the court of appeals overlooked the requirement that the Legislature satisfy a dual purpose when passing laws regarding trial by jury: the purity of the right to trial by jury, and the efficiency of the right to trial by jury. When the Legislature adopted Art. 44.46(2) of the Code of Criminal Procedure, it complied with both purposes.
Art. 44.46(2) permits an appellate court to reverse a conviction on the ground that a juror was "absolutely disqualified" in two circumstances: one, when the disqualification was brought to the trial court's attention before the verdict was entered; and two, when the disqualification was brought to the trial court's attention after the verdict was entered, and the defendant shows he suffered a "significant harm by the service of the disqualified juror." By allowing appellate courts to reverse convictions when a disqualified juror has served on a jury, Art. 44.46 honors the requirement of Art. XVI, 2 of the Texas Constitution that the legislature make laws excluding individuals who have been convicted of "bribery, forgery, perjury or other high crimes" from serving on juries. In this way, Art. 44.46 maintains the purity of the right to trial by jury required by Art. I, 15.
But Art. 44.46 also satisfies the mandate of Art. 1, 15, which states that the Legislature must maintain the efficiency of the right to trial by jury. It accomplishes this by encouraging trial courts to halt proceedings before a verdict is entered and declare mistrials if the disqualification is brought to their attention during trial. In this situation, the trial courts realize the case will be reversed on appeal. It also serves the efficiency of the right to trial by jury by preserving the integrity of a jury's verdict, which has already been entered, so long as the defendant has not been significantly harmed.
The Corpus Christi Court of Appeals overlooked the constitutional mandate of preserving the efficiency of the right to trial by jury. Instead, the court of appeals sought to only preserve the mandate of the "purity" of the right to trial by jury. As a result, the court of appeals decided Art. 44.46(a)(2) was unconstitutional because it would allow a jury's verdict to stand even though it contained an otherwise disqualified juror and was, therefore, not pure. In this decision, the Corpus Christi Court of Appeals implicitly concluded that the erroneous inclusion of a disqualified juror on a jury panel was immune to harmless error analysis. I disagree with this supposition.
No error, whether it relates to jurisdiction, voluntariness of a plea, or any other mandatory requirement, is "categorically immune to a harmless error analysis."(7) Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997). In Cain, the defendant complained of the trial court's failure to admonish him of the potential deportation consequences of his guilty plea pursuant to Art. 26.13(a)(4) of the Code of Criminal Procedure. This Court held that the trial court's error was subject to harmless error analysis and further concluded that the trial court's failure to properly admonish the defendant was harmless because the defendant was a United States citizen and not subject to deportation. See id. at 264; see also Cena v. State, 991 S.W.2d 283 (Tex. Crim. App. 1999)(concluding that the trial court's error in refusing to permit the defendant to ask the jury a proper question during voir dire was subject to a harmless error analysis.); Salinas v. State, 980 S.W.2d 219 (Tex. Crim. App. 1998)(concluding that the error in failing to comply with Art. 1.13's requirement of executing a written waiver of jury trial upon the defendant changing plea before the jury was subject to a harmless error analysis).
Moreover, the erroneous decision to grant or deny challenges for cause are not structural federal constitutional errors and, therefore, are subject to harmless error analysis. See Johnson v. State, 982 S.W.2d 403, 406 (Tex. Crim. App. 1998) (holding that the trial court's improper denial of defendant's challenge for cause under Art. 35.16(c)(2) of the Code of Criminal Procedure was subject to a harmless error analysis under Rule 44.2(b) of the Rules of Appellate Procedure.); Jones v. State, 982 S.W.2d 386, 392-94 (Tex. Crim. App. 1998) (concluding that in the direct review of a capital murder conviction, the trial court's error in improperly sustaining the State's challenge for cause was not reversible because the defendant could not show he was denied a trial by a fair and impartial jury). I would therefore conclude that the instant case does not involve an occurrence of a structural federal constitutional error.
Finally, in Issac v. State, 989 S.W.2d 754, 757 (Tex. Crim. App. 1999), this Court dealt with a statute similar to Art. 44.46(a)(2). This Court concluded in Issac that Rule 34.6(f)(3) of the Rules of Appellate Procedure effectively called for a harmless error analysis because it permitted a new trial in the event of a missing portion of a trial record on appeal only when the missing portion of the record was shown to be "necessary to the appeal's resolution." Relying on our decision in Cain v. State, we decided in Issac that an automatic rule of reversal is not justified merely because "the lack of a record may in some cases deprive an appellate court of the ability to determine whether the absent portions are necessary to the appeal's resolution." Id. at 757.
In the instant case, we are confronted with the application of Art. 44.46(2) which does not involve structural federal constitutional error and is only a harmless error statute by implication.(8) The Legislature provided in Art. 44.46(2) for appellate reversals only in cases where a defendant has shown he was significantly harmed by the seating of a felon on his jury panel and where the error was not discovered until after the verdict was entered. The purity of the right to trial by jury is not adversely impacted by an inquiry into whether the erroneous inclusion of a felon on a jury panel resulted in a significant harm to a defendant. The efficiency of the right to trial by jury has been served by preserving the integrity of a jury's verdict where no significant harm to the defendant has occurred.
This Court should conclude that Art. 44.46(a)(2), and its requirement that a defendant show significant harm by the erroneous inclusion of a convicted felon on his jury, is not invalid under the Texas Constitution. Art. 44.46(2) merely calls for the application of harmless error analysis to a violation of Art. 35.19 of the Code of Criminal Procedure which was enabled by Art. XVI, 2 of the Constitution. Art. 44.46(a)(2) serves both goals of Art. I, 15 of the Texas Constitution.
Here, the court of appeals agreed with appellant that Art. 44.46(a)(2) violated the Texas Constitution's protection of his inviolate right to jury trials. I would reverse the judgment of the court of appeals and conclude that Art. 44.46(a)(2) is not unconstitutional. Because the majority fails to do so, I respectfully concur only in their judgment.
Delivered February 9, 2000.
1. Art. XVI, 2 provides,
"Laws shall be made to exclude from , serving on juries, , those who may have been or shall hereafter be convicted of bribery, perjury, forgery, or other high crimes." See Tex. Const. art. XVI, 2.
2. I believe the intent of the majority is not to include all crimes of moral turpitude. Instead, by the meaning of the principle of ejusdem generis set out in the majority opinion they include only those crimes of moral turpitude which are akin to bribery, perjury and forgery. These would be crimes involving false statement or dishonesty. In contrast, all crimes of moral turpitude would also include offenses describing acts and character of vileness and baseness which set the offender apart from the rest of society. See U.S. v. Gloria, 494 F.2d 477, 481 (5th Cir. 1974).
3. U.S. Const. art. II, 4 sets out:
"The President, Vice President and all civil Officers of the United State shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors."
4. For example, crimes which do not involve dishonesty or false statement include murder, sexual assault, burglary, robbery, possession or distribution of controlled substances, and felony intoxication offenses.
5. The only support they have found in their position was in the dissenting opinion of Justice Dorsey in the court below.
6. The State filed petitions for discretionary review through the Cameron County District Attorney's office and through the State Prosecuting Attorney's office. The Cameron County District Attorney's office argues that Art. 44.46(2) does not violate the Texas Constitution. The State Prosecuting Attorney's office argues essentially the same issue. For the purposes of this opinion we will consider the offices of the District Attorney and the State Prosecuting Attorney to be a single party, to wit, the State. See State v. Hight, 907 S.W.2d 845, 846 (Tex. Crim. App. 1995).
7. Only those specific federal constitutional errors which have been labeled by the United States Supreme Court as structural errors are categorically immune to harmless error analysis. See Arizona v. Fulminante, 111 S.Ct. 1246, 1264-65 (1991), (stating that the Supreme Court defined certain federal constitutional errors as "structural" and, therefore, immune to harmless error analysis).
8. There is nothing in this type of error which should be immune to harmless error analysis. "Appellate courts should not foreclose entire categories of error from harmless error review merely because such errors may resist a meaningful harmless error determination." Cain v. State, 947 S.W.2d at 264.