I respectfully dissent to the Court's holding that Rule 44.2(b) of the Texas Rules of Appellate Procedure does not affect the judicially-created harm standard this Court adopted in its 1944 Wolfe decision for the erroneous denial of a defense challenge for cause. See Johnson v. State, S.W.3d Slip op. at 2 (Tex.Cr.App. 1353-99, delivered this date); Wolfe v. State, 178 S.W.2d 274, 279-81 (Tex.Cr.App. 1944) (op. on reh'g). Wolfe adopted the now familiar harm standard: harm is shown when a defendant exercises a peremptory challenge on a veniremember whom the trial court should have excused for cause at the defendant's request, the defendant eventually uses all of his statutorily allotted peremptory challenges, and the defendant later unsuccessfully requests another peremptory challenge which he says he would exercise on another veniremember whom the defendant identifies as "objectionable" and who actually sits on the jury. See Wolfe, 178 S.W.2d at 281; see also Martinez v. State, 763 S.W.2d 413, 415 (Tex.Cr.App. 1988), cert. denied, 114 S.Ct. 2765 (1994).

When these conditions are met, Wolfe concludes that the defendant has been "deprived" of a statutory peremptory challenge because one was used to remove a veniremember who should have been excused for cause. See Wolfe, 178 S.W.2d at 281; see also Martinez, 763 S.W.2d at 415. In retaining Wolfe, the Court, therefore, decides that the harm inquiry under Rule 44.2(b) is whether the erroneous denial of a defense challenge for cause "deprived" the defendant of at least one of his statutory peremptory challenges. See Martinez, 763 S.W.2d at 415. This harm standard requires the reversal of many convictions even when a defendant was tried by a fair and impartial jury. See Johnson, Slip op. at 4 fn 1 (Johnson, J., concurring) (citing various cases where this happened); Wolfe, 178 S.W.2d at 281. ⁽¹⁾

The harm inquiry under Rule 44.2(b) should be whether the erroneous denial of a defense challenge for cause deprived the defendant of the constitutional right to a fair and impartial jury. For example, Article 1.03(5), V.A.C.C.P., clearly states that one of the objects of the Code of Criminal Procedure is to "insure a fair and impartial trial." Article 1.05, V.A.C.C.P., likewise provides that in all criminal prosecutions the accused shall have an impartial jury. The Legislature did not provide a defendant the right to the "unbridled" use of his peremptory challenges separate from the objective of securing a fair and impartial jury. To the contrary, Article 35.15, V.A.C.C.P., providing for peremptory challenges apparently is intended not to effectuate a party's right to the "unbridled" use of these peremptory challenges but to effectuate their traditional purpose of helping to secure the constitutional guarantee to a fair and impartial jury. See Georgia v. McCollum, 505 U.S. 42, 57 (1992) (peremptory challenges are "one state-created means to the constitutional end of an impartial jury and a fair trial"). The Legislature has not expressly provided or otherwise suggested that appellate courts should reverse convictions of defendants who were tried by fair and impartial juries.

I, therefore, would adopt the pre-Wolfe harm standard in interpreting Rule 44.2(b) in cases such as this. ⁽²⁾ The only significant difference between this pre-Wolfe harm standard and that set forth in Wolfe is how each treats an "objectionable" juror who sits on the jury. See Wolfe, 178 S.W.2d at 281.

Under Wolfe a defendant need only say that the sitting juror is "objectionable" without explanation. See Wolfe, 178 S.W.2d at 281. Under the pre-Wolfe harm standard which the Court should re-adopt today, a defendant has to indicate why this sitting juror is "objectionable." See id. While this is usually done by showing that this juror is subject to a challenge for cause, other reasons could suffice as stated in Prewitt v. State, 167 S.W.2d 194, 197 (Tex.Cr.App. 1942) (op. on reh'g) (internal quotations omitted), overruled sub silentio, Wolfe, 178 S.W.2d at 279-81:

An objectionable juror, in the sense in which the term is used in this connection, means one against whom such cause for challenge exists as would likely affect his competency or his impartiality in the trial. Without some such showing it is idle simply to say that a juror is objectionable. Undoubtedly a juror subject to challenge for cause is objectionable, but the term objectionable in this connection also connotes some ground or cause, such as the formation of opinion, or some prejudice, which might be ground of challenge, and would tend to show that the juror was not absolutely fair and impartial. That the juror was objectionable in this sense may be shown by his answers on the voir dire, or by independent evidence of expressions of opinion prior to the trial, but not by his vote for conviction and penalty although others voted for a lighter sentence. Nor is the amount of damages awarded in a civil case ground for deeming a juror objectionable.

The pre-Wolfe harm standard would also be consistent with this Court's recent decision in Jones v. State, 982 S.W.2d 386, 391-94 (Tex.Cr.App. 1998), cert. denied, 120 S.Ct. 444 (2000), in its assessment of harm under Rule 44(b)(2). Jones overruled prior case law that, like Wolfe, had held the erroneous grant of a prosecution challenge for cause under certain circumstances harms a defendant because it effectively gives the prosecution an extra peremptory challenge. See Jones, 982 S.W.2d at 393-94, overruling Payton v. State, 572 S.W.2d 677 (Tex.Cr.App. 1978). Jones adopted a fair and impartial jury harm standard which is the same standard that the Court should adopt in this case. See Jones, 982 S.W.2d at 391-94.

Finally, the Court's opinion concludes that the United States Supreme Court's decision in Ross is inapplicable here because Ross does not affect how this Court "has interpreted state law." See Johnson, slip op. at 10. True, under principles of federalism, Ross does not affect judicially created state law harm standards so "long as the jury that sits is impartial." See Ross, 487 U.S. at 88. But, Ross and the United States Supreme Court's more recent decision in U.S. v. Martinez-Salazar are still persuasive authority for the proposition that a defendant is not deprived of any statutory peremptory challenges when he uses a peremptory challenge to remove a juror who should have been excused for cause because this defendant, like the appellant in this case, still receives the number of statutory peremptory challenges that state law provides. See Ross, 487 U.S. 90-91 (defendant not deprived of any peremptory challenges provided by Oklahoma law when he used a peremptory challenge to remove a juror who should have been excused for cause); see also U.S. v. Martinez-Salazar, 120 S.Ct. 774, 780-82 (2000) (defendant not deprived of any peremptory challenges provided by federal law when defendant used a peremptory challenge to remove a juror who should have been excused for cause).

I respectfully dissent.

(Filed March 28, 2001)

En Banc

Publish

1. Without citation to any authority, the Court's opinion says the erroneous denial of a defense challenge for cause "is error because the makeup of the jury affects its decision." See Johnson, Slip op. at 7. Neither Wolfe nor relevant United States Supreme Court precedent support this statement. See Ross v. Oklahoma, 487 U.S. 81, 87-88 (1988) (possibility in cases like this that "the composition of the jury panel might have changed significantly" does not mandate reversal); Wolfe, 178 S.W.2d at 281 (harm standard based on "deprivation" of a peremptory challenge rationale).

2. Wolfe overruled a long line of cases, dating back to at least the 1890 Hudson case, that effectively applied the denial of a fair and impartial jury harm standard. See Wolfe, 178 S.W.2d at 279-81, overruling, Hudson v. State, 13 S.W. 388, 389 (Tx.Ct.App. 1890).