NO. 1649-98








Keller, P.J. delivered the opinion of the Court in which WOMACK, KEASLER, and HERVEY, JJ., joined. HOLCOMB, J., filed a dissenting opinion in which PRICE, and JOHNSON, J., joined. MEYERS, J., concurred in the result. COCHRAN, J., did not participate in the decision of the Court.


Appellant was convicted of murder and four counts of attempted murder and sentenced to the maximum punishment in each case. On appeal, appellant contended that the trial court erred in denying his request for a jury shuffle. The State conceded error but argued that the error was harmless under Texas Rule of Appellate Procedure 44.2(b). The Court of Appeals reversed, holding that the jury shuffle was a "substantial right" that was denied and holding that the error could not be disregarded as harmless because the appellate court was unable to measure whether the error had a substantial or injurious effect on the jury's verdict. (1)

The State (2) filed petitions for discretionary review, arguing that the Court of Appeals erred in its harm analysis. We will reverse the Court of Appeals.


Texas Code of Criminal Procedure, Article 35.11 requires that the seating order of the venire be randomly shuffled at the request of either party. (3) Because the right to a jury shuffle is statutory in nature, any error in connection therewith must be evaluated for harm under the standard for nonconstitutional errors. (4) That standard provides: "Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded." (5)

When the admission of evidence is at issue, a "substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict." (6) Or conversely, a substantial right is not affected when, "the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight affect." (7) Neither party has a burden to prove or disprove harm; rather, it is the responsibility of the reviewing court, once it concludes there was error, to determine whether the error affected the judgment. (8) It must do so without the benefit of such aids as presumptions or allocated burdens of proof that expedite fact-finding at the trial. (9)


According to the Court of Appeals, holding the violation of a mandatory statute harmless would invite judicial activism of the worst sort and transform a mandatory duty of the trial court into a completely discretionary act. But this logic would re-establish automatic reversible error, contrary to the language and purpose of Rule 44.2 and contrary to our opinion in Cain. (10) Under our harmless error rule the violation of a mandatory statute does not, by itself, call for the reversal of a conviction. If an appellate court is in "grave doubt" about the harmlessness of the error, then the judgment must be reversed. (11) But if the record shows that a defendant was not harmed by an error, then the error must be disregarded.

With some types of error, the absence of something in the record can be sufficient to show that a defendant was not harmed. Jones is a case in point. (12) Jones concerned the erroneous grant of a State's challenge for cause. We said, "the erroneous excusing of a veniremember will call for reversal only if the record shows that the error deprived the defendant of a lawfully constituted jury." (13) This holding should be read in light of the right that is ordinarily at stake in challenges for cause: that the jurors who serve be qualified. (14) There is no right to have any particular person on the jury; rather, trial courts should follow a policy of liberally granting challenges for cause. (15) The erroneous granting of a challenge for cause, then, will not result in harm to the defendant so long as the jury actually selected was composed of qualified persons. And we presume that jurors are qualified absent some indication in the record to the contrary. In essence, the record shows that the defendant is not harmed by such an error when it contains no indication that those who served on the jury were unfit for duty.

The Court of Appeals also found measuring harm from errors involving the formation of the jury to be next to impossible. It is true that formulations that focus on the outcome of a case are not quite apt in the context of a case in which the jury itself is the object of the error. As in Jones, we should consider what right is protected by the statute. The inquiry in this case is whether the jury shuffle statute's purpose was thwarted by the error.


The jury shuffle is designed to ensure the compilation of a random list of jurors. (16) Either party can ask for a shuffle, and only one shuffle is required, regardless of which party makes the request. (17) So, while the jury shuffle may sometimes be used by the parties as a strategic tool, the purpose of the statute is merely to ensure that the members of the venire are listed in random order. The applicable rules and statutes already require that panels be listed randomly from the outset. The jury pool is drawn from the names of all persons currently registered to vote, all citizens currently holding a valid driver's license, and all citizens currently holding a valid personal identification card. (18) Randomness is ensured by statutes directing the drawing of names, by the certification of the jury list, and by provisions for electronic or mechanical methods of selection. (19) The rules by which individual panels are drawn further serve to achieve randomness. (20)

Because the law requires that venire panels be assembled in random order, a trial judge's failure to order a shuffle does not, by itself, indicate a nonrandom listing of the venire. Nothing in the record of this trial indicates that the procedures outlined in the applicable statutes and rules were disregarded, that the panel was reordered after being assembled, or that the process of assembling a jury panel was subverted in some fashion to achieve a nonrandom listing of the venire. Under the record in the present case, the error in refusing to allow a jury shuffle has been shown to be harmless under Rule 44.2(b).

The judgment of the Court of Appeals is reversed, and the trial court's judgment is affirmed. (21)

KELLER, Presiding Judge



1. The opinion from which the State petitions this Court was issued under Rule 50, Texas Rules of Appellate Procedure.

2. Both the Tarrant County District Attorney and the State Prosecuting Attorney filed petitions that were granted. We will refer to them both collectively as the "State."

3. Article 35.11 provides:

The trial judge, on the demand of the defendant or his attorney, or of the State's counsel, shall cause a sufficient number of jurors from which a jury may be selected to try the case to be randomly selected from the members of the general panel drawn or assigned as jurors in the case. The clerk shall randomly select the jurors by a computer or other process of random selection and shall write or print the names, in the order selected, on the jury list from which the jury is to be selected to try the case. The clerk shall deliver a copy of the list to the State's counsel and to the defendant or his attorney.

4. The error is subject to a harm analysis because the right to a jury shuffle does not fall within the very limited class of rights immunized from a harm analysis by the United States Supreme Court. Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997)(only errors that the Supreme Court has designated as "structural" are categorically immune from a harmless error analysis).

5. Texas Rule of Appellate Procedure 44.2(b).

6. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).

7. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

8. Johnson v. State, 43 S.W.3d 1, 4-5 (Tex. Crim. App. 2001).

9. Id. at 5.

10. Johnson, 947 S.W.2d at 264.

11. Johnson, 43 S.W.3d at 4.

12. Jones v. State, 982 S.W.2d 386, 393 (Tex. Crim. App 1998).

13. Id. at 394.

14. Id. at 393.

15. Id.

16. Jones v. State, 833 S.W.2d 146, 148 (Tex. Crim. App. 1992).

17. Id. at 149.

18. Texas Government Code 62.001.

19. Texas Government Code 62.004, 62.006, 62.011.

20. Texas Code of Criminal Procedure, Article 33.09; Texas Rules of Civil Procedure 223, 224.

21. The dissenting opinion perceives inconsistency in our interpretations of Rule 44.2(b), but any such complaints should be directed to the United States Supreme Court.That is where the language in all of those cases came from, in Kotteakos v. United States, 328 U.S. 750 (1946), the leading Supreme Court case on non-constitutional error.We do not find the various phrases used by the Supreme Court to describe the non-constitutional standard at all inconsistent or confusing. And some of the differences in application reflect the different natures of the errors involved. Contrary to the dissenting opinion's implication, our holding does not require that appellate courts always look to the effect of the error on the jury's verdict. How an error affects a substantial right will vary depending upon the type of error in question. For example, in the present case, the right in question is the randomness of the jury panel - which does not require attempting to ascertain the error's effect on a jury verdict.

Unhappy with the rule we have, the dissent re-writes Rule 44.2(b) and calls it a "new interpretation." Under this interpretation, "substantive" means "of major or practical importance," and reversal would result from an error "of practical importance" to a defendant. With this rule, virtually all errors would result in reversal - as this case illustrates. This is surely not what the Legislature intends.

The dissenting opinion contends that the literal wording of the statute unambiguously provides a strategic tool to the accused. We disagree. Nowhere in the statute are the words "strategic tool" used, and this interpretation is contradicted by the fact that only one shuffle is authorized and it can be effected by either the defendant or the State. The dissent further contends that we recognized in Wilkerson v. State, 681 S.W.2d 29 (Tex. Crim. App. 1984) that providing such a strategic tool was "the very intent behind the passage of the statute." However, the case actually said that the legislative intent would be thwarted if a trial court's sua sponte shuffle foreclosed the State or a defendant from effecting one. Id. at 30. There are no specific procedures in place to ensure the randomness of a trial court's sua sponte shuffle, and so such a shuffle, while not prohibited, could raise a concern about tampering with the process.