I agree with the Court that Texas Rule of Appellate Procedure 44.2(b) announces the appropriate harm standard for this case, and I agree that Rule 44.2(b) does not place burdens upon either party but requires the reviewing court to determine harm on its own examination of the record. I write separately for three reasons: (1) to clarify the interplay between Ross v. Oklahoma, ⁽¹⁾ Wolfe v. State, ⁽²⁾ and Jones v. State, ⁽³⁾ (2) to disavow any implication that meeting the traditional preservation of error test for the denial of for-cause challenges establishes harm regardless of any other factors that may be present in the case and (3) to record my disagreement with a statement of the Court regarding error and the makeup of the jury.

Ross is a federal constitutional case, and so has no application to a question of state law. In finding that the denial of a peremptory challenge did not violate the federal constitution, the Supreme Court emphasized that peremptory challenges are not of constitutional dimension but are a creature of statute. ⁽⁴⁾ While the Court discussed Oklahoma law, it did not actually hold that a violation of Oklahoma law with regard to peremptory challenges would amount to a constitutional violation; the Court simply assumed for the sake of argument that such could be the case. ⁽⁵⁾ The Court then discussed Oklahoma law and found that Oklahoma law did not give the defendant an unbridled right to exercise peremptory challenges but required that peremptories be used to cure trial court errors regarding for cause challenges. ⁽⁶⁾

Texas statutory law gives the defendant a right to exercise a certain number of peremptory challenges, depending on the type of case. ⁽⁷⁾ Texas statutory law also provides that "A peremptory challenge is made to a juror without assigning any reason therefor." ⁽⁸⁾ In Wolfe, we interpreted the predecessors to those provisions (which are materially the same as the current provisions with regard to the issue at hand) to confer upon the defendant an unbridled right to exercise the number of peremptory challenges given. ⁽⁹⁾ This unbridled right is violated when the defendant is forced to use a peremptory challenge on a juror who should have been removed for cause, and as a result, the defendant is required to accept a different juror who is objectionable to him. ⁽¹⁰⁾ As the Court correctly states, the Supreme Court's discussion of Oklahoma law has no bearing upon the issue before us because Texas' conception of peremptory challenges, as a matter of state law, is different from that held by Oklahoma at the time Ross was decided.

The right at issue in the present case, then, is the right to an unbridled use of the number of peremptory challenges given. ⁽¹¹⁾ This right distinguishes the present case from Jones. In Jones, we held that the erroneous granting of a challenge for cause constitutes reversible error only if the record shows that the defendant was deprived of a lawfully constituted jury. ⁽¹²⁾ The defendant in Jones was not forced to expend a peremptory challenge to cure the trial court's error. The most the defendant could claim is that trial court's granting of a challenge for cause effectively gave the State an extra peremptory challenge. But there is no right to prevent the State from obtaining what might be construed as an extra peremptory challenge. In fact, we explained in Jones that courts ought to follow a policy of liberally granting challenges for cause. ⁽¹³⁾ When a challenge for cause is erroneously denied, however, that policy in Jones is thwarted. Courts should err on the side of granting for cause challenges, not on denying them.

Of course, the traditional preservation test imposes certain requirements upon the defendant to expend peremptory challenges in order to cure errors relating to challenges for cause. As the majority states, a defendant must (1) exercise a peremptory challenge on the prospective juror in question, (2) exhaust his peremptory challenges, (3) ask for more challenges, (4) be denied the appropriate extra challenges, and (5) point to at least one objectionable person seated upon the jury upon whom the defendant would have exercised a peremptory challenge. A failure to fulfill any one of these requirements would show that the error was in fact harmless. If the defendant refuses to exercise a peremptory challenge on a particular person, then we can infer that the defendant did not believe he would be harmed by that person's presence on the jury. If the defendant fails to exhaust his peremptory challenges, then his right to the unbridled use of his challenges was not infringed. Similarly, if the defendant fails to ask for more challenges or fails to point to an objectionable person, then we can conclude that the defendant was able to exercise all of the peremptory challenges he desired. And if the trial court gives the defendant sufficient extra peremptory challenges then the error is cured because the defendant is given the unbridled use of the number of peremptory challenges conferred by statute.

Satisfying all of these requirements raises the inference that the defendant was forced to expend a peremptory challenge to cure the denial of a valid for-cause challenge and that the defendant was not given relief that would recompense him for his loss. So, I agree that satisfying all of these requirements is sufficient to show harm absent other considerations. But I would not foreclose the possibility that some additional factor in the record may show a lack of harm in a given case despite the defendant's compliance with the requirements outlined above. I am unaware of any additional circumstance in the present record that would indicate a lack of harm, and appellant has met all of the traditional requirements for showing harm in this situation. Therefore, I agree with the Court that he is entitled to a new trial.

Finally, the Court's statement that, "Denial of a proper challenge for cause is error because the makeup of the jury affects its decision" is inconsistent with our holding in Jones.

KELLER, Presiding Judge

Date delivered: March 28, 2001

Publish

1. 487 U.S. 81 (1988).

2. 178 S.W.2d 274 (Tex. Crim. App. 1944).

3. 982 S.W.2d 386 (Tex. Crim. App. 1998).

4. Ross, 487 U.S. at 88-89.

5. Id. at 89.

6. Id. at 90.

7. Texas Code of Criminal Procedure, Article 35.15.

8. Texas Code of Criminal Procedure, Article 35.14.

9. Wolfe, 178 S.W.2d at 280 ("there is, in favorem vitae, allowed to the prisoner an arbitrary and capricious species of challenge to a certain number of jurors, without showing any cause at all," quoting Blackstone and Justice Story).

10. Id. at 279-281.

11. We recognize that there may be limitations imposed upon this right by the federal or state constitution or by other statutes. See Batson v. Kentucky, 476 U.S. 79 (1986); Texas Code of Criminal Procedure, Article 35.261.

12. Jones, 982 S.W.2d at 394.

13. There may perhaps be a right to prevent the State from gaining an overwhelming advantage through the acquisition of a highly disproportionate number of peremptory challenges or the erroneous granting a highly disproportionate number of challenges for cause. That is not an issue here.