Aaron Keith Gilkey v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN








NO. 03-98-00467-CR


Aaron Keith Gilkey, Appellant



v.





The State of Texas, Appellee








FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT

NO. 0981744, HONORABLE FRED A. MOORE, JUDGE PRESIDING


Appellant Aaron Keith Gilkey was convicted by a jury of burglary of a habitation. See Tex. Penal Code Ann. § 30.02(a)(3) (West 1994). After appellant pleaded true to six prior felony offenses in five enhancement allegations, the trial court sentenced him as a habitual offender to sixty years' imprisonment. See Tex. Penal Code Ann. § 12.42(d) (West Supp. 1999).

Appellant's sole point of error contends that the trial court erred in granting the State's challenge for cause of a member of the venire on the ground that he could not read or write sufficiently to qualify for jury duty. We will affirm the conviction.

The trial court granted the State's challenge for cause to venire member Travis Tran, based on his inability to read and write. Appellant objected on the ground that Mr. Tran was able to read and write to a limited degree. Mr. Tran had been in this country for fifteen years. He went to the eleventh grade in school. He admitted that a friend had helped him fill out the juror questionnaire. He said that he did not understand some parts of the questionnaire. The trial court asked him whether he could write the judge a letter in case some emergency came up, and he replied that he would probably get someone else to help him write it. The court ruled that he was not qualified because he did not have a sufficient command of the English language.

The State or defense may challenge a venire member for the reason "that he cannot read or write." See Tex. Code Crim. Proc. Ann. art. 35.16(a)(11) (West 1989). The requirement of an ability to write is not satisfied by the mere ability to write one's name, but contemplates that the venire person must be able to express his ideas in writing. Hernandez v. State, 506 S.W.2d 884, 887 (Tex. Crim. App. 1974). In Garcia v. State, 581 S.W.2d 168, 176 (Tex. Crim. App. 1979), vacated and remanded on other grounds, 453 U.S. 902 (1981), the court of criminal appeals upheld the trial court's grant of a challenge based on this requirement when a venire person put information in wrong blanks on the juror information card, and left other information off the card; the venire person stated that he had trouble filling out the card and that he did not understand the questions. He said that he thought that he could read the court's charge, but said it would be difficult to understand. In Allridge v. State, 762 S.W.2d 146, 164-65 (Tex. Crim. App. 1988), cert. denied, 489 U.S. 1040 (1989), the trial court's decision was upheld when he granted a challenge for cause because the person did not understand some of the questions on the juror questionnaire, and had difficulty writing. In Johnson v. State, 773 S.W.2d 322, 331 (Tex. Crim. App. 1989), aff'd; Johnson v. Texas, 509 U.S. 350 (1993), the court upheld the trial court's grant of a challenge for cause, even though the venire person did possess rudimentary grammatical skills.

Excusing a venire person for inability to read and write is a matter within the discretion of the trial court and will not be disturbed absent a showing of abuse of discretion. Flores v. State, 871 S.W.2d 714, 718 (Tex. Crim. App. 1993); Goodwin v. State, 799 S.W.2d 719, 736 (Tex. Crim. App.1990), cert. denied, 501 U.S. 1259 (1991). There is no abuse if the record supports the court's decision. Flores, 871 S.W.2d at 718. We hold that the trial court's grant of the challenge for cause was not an abuse of discretion.

Even if the trial court had erred in this decision, appellant has not shown how his substantial rights have been affected. See Tex. R. App. P. 44.2(b). Appellant does not argue that the erroneous excusing of a potential juror for illiteracy is of constitutional dimension. A mere error in ruling on a challenge for cause does not violate a defendant's constitutional rights to an impartial jury. See Jones v. State, 982 S.W.2d 386, 391-92 (Tex. Crim. App. 1998); U.S Const. amend. VI; Tex. Const. Art. 1 § 10. The erroneous excusing of a venire member does not call for reversal unless the record shows that the error deprived the defendant of a lawfully constituted jury. Jones, 982 S.W.2d at 394. There is no such showing in this case. Appellant's point of error is overruled.

We affirm the judgment of the trial court.





Mack Kidd, Justice

Before Chief Justice Aboussie, Justices Kidd and Patterson

Affirmed

Filed: June 30, 1999

Do Not Publish

ge for cause of a member of the venire on the ground that he could not read or write sufficiently to qualify for jury duty. We will affirm the conviction.

The trial court granted the State's challenge for cause to venire member Travis Tran, based on his inability to read and write. Appellant objected on the ground that Mr. Tran was able to read and write to a limited degree. Mr. Tran had been in this country for fifteen years. He went to the eleventh grade in school. He admitted that a friend had helped him fill out the juror questionnaire. He said that he did not understand some parts of the questionnaire. The trial court asked him whether he could write the judge a letter in case some emergency came up, and he replied that he would probably get someone else to help him write it. The court ruled that he was not qualified because he did not have a sufficient command of the English language.

The State or defense may challenge a venire member for the reason "that he cannot read or write." See Tex. Code Crim. Proc. Ann. art. 35.16(a)(11) (West 1989). The requirement of an ability to write is not satisfied by the mere ability to write one's name, but contemplates that the venire person must be able to express his ideas in writing. Hernandez v. State, 506 S.W.2d 884, 887 (Tex. Crim. App. 1974). In Garcia v. State, 581 S.W.2d 168, 176 (Tex. Crim. App. 1979), vacated and remanded on other grounds, 453 U.S. 902 (1981), the court of criminal appeals upheld the trial court's grant of a challenge based on this requirement when a venire person put information in wrong blanks on the juror information card, and left other information off the card; the venire person stated that he had trouble filling out the card and that he did not understand the questions. He said that he thought that he could read the court's charge, but said it would be difficult to understand. In Allridge v. State, 762 S.W.2d 146, 164-65 (Tex. Crim. App. 1988), cert. denied, 489 U.S. 1040 (1989), the trial court's decision was upheld when he granted a challenge for cause because the person did not understand some of the questions on the juror questionnaire, and had difficulty writing. In Johnson v. State, 773 S.W.2d 322, 331 (Tex. Crim. App. 1989), aff'd; Johnson v. Texas, 509 U.S. 350 (1993), the court upheld the trial court's grant of a challenge for cause, even though the venire person did possess rudimentary grammatical skills.

Excusing a venire person for inability to read and write is a matter within the discretion of the trial court and will not be disturbed absent a showing of abuse of discretion. Flores v. State, 871 S.W.2d 714, 718 (Tex. Crim. Ap