NO. 73,058








Per Curiam.


We affirmed appellant's conviction for capital murder and sentence of death. Tong v. State, No. 73,058 slip op. (Tex. Crim. App. April 12, 2000). In his motion for rehearing, appellant claims we improperly held one of his points of error inadequately briefed.

We begin by reprinting the pertinent facts from our opinion on original submission:

In his first point of error, appellant complains that the trial judge abused his discretion by changing the method of jury selection in the middle of voir dire. Appellant asserts that this change prevented him from intelligently utilizing his peremptory challenges, thus denying him the effective assistance of counsel, due process of law, and due course of law.

According to appellant, the judge assured him at the beginning of trial that he "would be given as many peremptory challenges as he requested," and he relied on this promise in conducting his voir dire. However, appellant contends that, as they were nearing the end of voir dire, the trial judge abruptly returned to "the old-fashioned way," but refused to restore any of his strikes. Hence, appellant claims he went from a position of having unlimited strikes to a position of having no strikes, which harmed him by subsequently forcing him to accept an undesirable juror.

Appellant maintains that the trial court's decision to alter its voir dire procedure deprived appellant of due process of law, due course of law and the effective assistance of counsel.

Tong, slip op. at 2 (footnotes omitted).

Appellant argued on original submission and continues to argue on rehearing, that his claim is supported by this Court's opinion in Sanne v. State, 609 S.W.2d 762, 767 (Tex. Crim. App. 1980). Sanne deals with the question of assessing harm in connection with a complained-about voir dire procedure provided for by statute. (1) Appellant's point of error is constitutionally based and grounded in a theory of detrimental reliance. By no stretch can Sanne be read to support appellant's argument that the trial court's unorthodox voir dire procedure, on which appellant claims he relied to his detriment, amounted to an abuse of discretion which deprived appellant of due process, due course of law, and effective assistance. Appellant has provided no authority in support of his detrimental reliance theory or his due process, due course of law, ineffective assistance claims. (2)

By relying on Sanne, appellant puts the question of harm ahead of the question of error. While this Court has occasionally analyzed voir dire issues solely on the basis of harm, skipping the preliminary question of error, Jones v. State, 982 S.W.2d 386 (Tex. Crim. App. 1998); Anson v. State, 959 S.W.2d 203 (Tex. Crim. App. 1997); Gardner v. State, 733 S.W.2d 195, 212 (Tex. Crim. App.1987), cert. denied, 488 U.S. 1034 (1989), this should not be taken as a suggestion to appellate litigants that the question of error in the voir dire context need not be addressed. When briefing an issue on direct appeal, the question of error should always be addressed first, followed by a discussion of whether or not the alleged error is harmful.

Because appellant continues to rely solely upon authority pertaining to the question of harm, we deny appellant's motion for rehearing. Our opinion on original submission is affirmed.

Delivered September 20, 2000


Judges Womack and Johnson dissent from the denial of appellant's motion for rehearing.

1. As we explained on original submission, the appellant in Sanne claimed the statutory provision in death penalty cases that the parties exercise peremptory challenges after examination of individual venire persons, as opposed to making peremptory challenges after having seen the entire venire, as in non-capital cases, violated equal protection and due process of law. We assumed, without deciding, that the constitutional claim had merit, but held that the appellant had failed to demonstrate harm. Sanne, 609 S.W.2d at 767. Appellate litigants are not permitted to make such assumptions, but bear a burden to demonstrate error or lack thereof.

2. Appellant cites two cases in his brief on original submission. He cites Martinez v. State, 867 S.W.2d 30, 35 (Tex. Crim. App. 1993)(conduct of voir dire examination rests within sound discretion of trial court, and only abuse of such discretion will call for reversal on appeal), for the proposition that abuse of discretion is the standard applicable to an appellate court's review of a trial court's actions in the voir dire context. Appellant also cites Sanne. As discussed, to the extent that Sanne could be viewed as applicable, it goes to the question of harm, not error.

Appellant claims he was denied the intelligent use of peremptory challenges, but does not cite any cases discussing the intelligent exercise of peremptory challenges. Appellant's claim is also based on a theory of detrimental reliance, but he does not cite to any cases discussing any type of detrimental reliance, even in an analogous context.