NO. 1353-99







Johnson, J., concurring.

C O N C U R R I N G  O P I N I O N

I join the majority opinion. I write separately to emphasize why the federal approach to peremptory challenges is not applicable in Texas.

In United States v. Martinez-Salazar, 528 U.S. 304, 120 S. Ct. 774, 145 L. Ed.2d 792 (2000), the defendant and a co-defendant were charged with a variety of federal offenses. During the jury selection process, a prospective juror indicated several times that he would favor the prosecution. The co-defendants challenged him for cause, but the district court refused to excuse him. The defendant then used a peremptory challenge to remove the prospective juror. The co-defendants subsequently exhausted all of their peremptory challenges. Following his conviction, the defendant complained on appeal of the district court's refusal to strike the prospective juror for cause. The Ninth Circuit Court of Appeals held that the district court had abused its discretion, and that the District Court's mistake resulted in a violation of Martinez-Salazar's Fifth Amendment due process rights because it forced him to use a peremptory challenge curatively, thereby impairing his right to the full complement of peremptory challenges to which federal law entitled him. It held that such an error required automatic reversal. Id., at 307-10, 120 S. Ct. at 777-78. However, the Supreme Court reversed, holding that a defendant's exercise of peremptory challenges pursuant to the federal rules of criminal procedure is not denied or impaired when the defendant chooses to use such a challenge to remove a juror who should have been excused for cause. Id., at 315-7, 120 S. Ct. at 781-82.

In so holding, the Supreme Court noted that the issue presented in Martinez-Salazar was "a problem in federal jury selection left open in Ross [v. Oklahoma, 487 U.S. 81, 108 S. Ct. 2273, 101 L. Ed.2d 80 (1988)]." Martinez-Salazar, 528 U.S. at 307, 120 S. Ct. at 777. In Ross, the defendant exercised a peremptory challenge to cure the trial court's error in denying a challenge for cause. Ross, 487 U.S. at 83-84, 108 S. Ct. at 2275-76. The Supreme Court rejected the position that, without more, "the loss of a peremptory challenge constitutes a violation of the constitutional right to an impartial jury," and held that "[s]o long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated." Ross, supra. The defendant further argued that forced use of a peremptory challenge to cure a trial court's error in denying a challenge for cause "arbitrarily depriv[ed] him of the full complement of peremptory challenges allowed under Oklahoma law." Id. at 487 U.S. at 88-89, 108 S. Ct. 2278. The Supreme Court also rejected this challenge, holding that the defendant did not lose any right conferred by state law when he used one of his nine challenges to remove a juror who should have been excused for cause. Because the defendant received all that state law allowed him, and the fair trial that the Federal Constitution guaranteed, the court rejected his due process challenge. Ross, 487 U.S. at 90-91, 108 S. Ct. at 2279-80.

The holding in Ross was ultimately grounded on Oklahoma state law. The Supreme Court noted that "peremptory challenges are a creature of statute and are not required by the Constitution" and that:

It is a long settled principle of Oklahoma law that a defendant who disagrees with the trial court's ruling on a for-cause challenge must, in order to preserve the claim that the ruling deprived him of a fair trial, exercise a peremptory challenge to remove the juror. Even then, the error is grounds for reversal only if the defendant exhausts all peremptory challenges and an incompetent juror is forced upon him. Ferrell v. State, 475 P.2d 825, 828 (Okla. Crim. App. 1970); Stott v. State, 538 P.2d 1061, 1064-1065 (Okla. Crim. App. 1975). . . .Thus, although Oklahoma provides a capital defendant with nine peremptory challenges, this grant is qualified by the requirement that the defendant must use those challenges to cure erroneous refusals by the trial court to excuse jurors for cause.

Ross, 487 U.S. at 89-90; 108 S. Ct. at 2279 (citations omitted)(emphasis added). In Martinez-Salazar, the Supreme Court found that the primary rationale for peremptory challenges in federal court was the same as in Oklahoma courts: "to help secure the constitutional guarantee of trial by an impartial jury." Martinez-Salazar, 528 U.S. at 316, 120 S. Ct. at 782.

This rationale for peremptory challenges has long been rejected in Texas. The Oklahoma cases cited in Ross rely on an earlier case, Johnson v. State, 97 P. 1059 (Okla. Crim. App. 1908). See Stott, 538 P.2d at 1064-65; Ferrell, 475 P.2d at 828. That case in turn relied upon a Texas case in which it was stated that "[i]t was error to refuse to stand the juror aside, but the error becomes harmless in view of the fact that the juror did not sit upon the case; the defendant having rid himself of him by a peremptory challenge, and no objectionable juror having set upon the case." Hudson v. State, 13 S.W. 388, 390 (Tex. App. 1890) (emphasis added); see Johnson, 97 P. at 1067 (citing Hudson); Ferrell, 475 P.2d at 828 (citing Johnson).

More than fifty years ago, however, we rejected the rationale of Hudson. Wolfe v. State, 178 S.W.2d 274, 281 (Tex. Crim. App. 1944) (op. on reh'g) (overruling Hudson). In Wolfe, we explained that harm is shown by the fact that "[i]t was a peremptory challenge which was wrongfully taken from [the defendant]." Id. at 280-81. Since Wolfe, we have consistently reversed convictions and ordered a new trial when we have found that the trial court improperly denied a challenge for cause and thereby forced the defendant to use a peremptory challenge to remove the juror in order to correct error by the trial court. (1) We have done so because, when a trial court improperly denies a challenge for cause, the defendant must use a peremptory challenge to cure the error. If he thereafter prematurely exhausts all peremptory challenges and is unable to remove an unacceptable juror, harm has been shown. Although we have sometimes simply held that the defendant "preserved error" and that "reversible error" has been shown, (2) in Martinez we explained that "harm [is] shown in that [a defendant is] denied the use of at least one of his allotted peremptory challenges." Martinez, 763 S.W.2d at 415. That is, given the rationale for peremptory challenges in Texas, as explained in Wolfe, the procedure by which a defendant preserves error also shows that there has been harm to the defendant. See Tex. R. App. P. 44.2(b); Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997). (3)

With these comments, I join the court's opinion.

Johnson, J.

Date Delivered: March 28, 2001


1. See, e.g., Martinez, 763 S.W.2d at 415-25; Cumbo v. State, 760 S.W.2d 251, 253-57 (Tex. Crim. App. 1988); Felder v. State, 758 S.W.2d 760, 762-70 (Tex. Crim. App. 1988); Barrow v. State, 688 S.W.2d 860, 861-63 (Tex. Crim. App. 1985); Homan v. State, 662 S.W.2d 372, 373-74 (Tex. Crim. App. 1984); Pierce v. State, 604 S.W.2d 185, 185-88 (Tex. Crim. App. 1980); Cuevas v. State, 575 S.W.2d 543, 544-46 (Tex. Crim. App. 1978); Williams v. State, 565 S.W.2d 63, 65 (Tex. Crim. App. 1978); Hernandez v. State, 563 S.W.2d 947, 948-50 (Tex. Crim. App. 1978); Gonzalez v. State, 331 S.W.2d 748, 749 (Tex. Crim. App. 1960); Salazar v. State, 193 S.W.2d 211, 212-13 (Tex. Crim. App. 1946) (op. on original submission and reh'g).

The dissent asserts that the cases cited in this footnote are cases in which this Court reversed a conviction despite the fact that the defendants in those cases were tried by what the dissent considers a "fair and impartial jury." Post, at ___ (slip op. at 2-3) (Hervey, J., dissenting). As the reader will note from the cases cited and the text accompanying this footnote, I have made no such assertion. There is nothing within the decisions in those cases which indicates that we made any such inquiry or that we came to any such conclusion; that was not the relevant inquiry in those cases. The issue in each of the cited cases was whether a defendant showed harm because the trial court erroneously denied a challenge for cause, thus forcing the defendant to remove the juror through use of a peremptory challenge. Our answer has consistently been, "Yes." As such, these cases simply stand for the proposition that a defendant should not be forced to use a peremptory challenge to cure error by the trial court.

2. See, e.g. Cumbo, 760 S.W.2d at 256-57; Felder, 758 S.W.2d at 766-67; Homan, 662 S.W.2d at 374; O'Bryan v. State, 591 S.W.2d 464, 473 (Tex. Crim. App. 1979), cert. denied, 446 U.S. 988, 100 S. Ct. 2975, 64 L. Ed.2d 846 (1980); Williams, 565 S.W.2d at 65.

3. The dissent argues that Ross and Martinez-Salazar are "persuasive authority" for the instant case. Post, at ___ (slip op. at 6-7) (Hervey, J., dissenting). However, as explained above, the fundamental premise of those cases, that the grant of peremptory challenges in those jurisdictions was for the purpose of curing erroneous refusals by the trial court to excuse jurors for cause, is radically different from the long-settled rationale for the grant of peremptory challenges in Texas. Thus, Ross and Martinez-Salazar should not be characterized as "persuasive authority."

The dissent also argues that the "intent" of art. 35.15 of the Texas Code of Criminal Procedure is not to authorize "unbridled" use of peremptory challenges, but to allow their use in order to get a fair and impartial jury. Id. at ___ (slip op. at 3-4) (Hervey, J., dissenting). The cited source from which this intent is discerned is a United States Supreme Court case from Georgia. Again, this argument misses the point that different jurisdictions may grant the use of peremptory challenges for different reasons.

Finally, the dissent argues that its approach to a harm analysis in the use of peremptory challenges is consistent with our decision in Jones v. State, 982 S.W.2d 386 (Tex. Crim. App. 1998), cert. denied, 528 U.S. 985, 120 S. Ct. 444, 145 L.Ed.2d 362 (1999). Post, at ___ (slip op. at 5-6) (Hervey, J., dissenting). I believe that this assertion is incorrect for at least two reasons. First, Jones dealt with the erroneous dismissal, for cause, of a juror. Jones, 982 S.W.2d at 390. We held that such error was harmless unless the defendant could show that such error deprived him of a lawfully-constituted jury. Id. at 390-94. The erroneous dismissal of a juror is very different from the erroneous denial of dismissal of a juror for cause; the circumstances and holding in Jones do not support the idea that a defendant can have forced upon him a juror unacceptable to him. Second, Jones does not support the contention that a defendant who has a juror that he finds unacceptable forced upon him has not been harmed unless he can show that he did not receive what the dissent considers a "fair and impartial trial." Rather, Jones supports the opposite result by its reaffirmation that "peremptory challenges are used to eliminate jurors who are thought (or felt) to be undesirable on a partisan evaluation," (id. at 393), a position with which the dissent's approach to peremptory challenges is at odds.