Anson v. State

MANSFIELD, Judge,

concurring.

Because I believe that our holding in Nunfio v. State, 808 S.W.2d 482, 484 (Tex.Crim.App.1991) should apply only to the denial of the right to ask proper questions of the venire during general voir dire, I join the opinion of the court.

In Nunfio, the defendant sought to ask the venire whether it would be biased in favor of the victim, a nun. He was denied the opportunity to ask the venire this question (which was clearly proper) and we found appellant properly preserved the issue for review on appeal. In reversing his conviction and remanding the cause to the trial court, we held: “[Ejrror in the denial of a proper question which prevents the intelligent exercise of one’s peremptory challenges constitutes an abuse of discretion and is not subject to a harm analysis under Rule 81(b)(2).”

The logic behind our holding in Nunfio is plainly evident: how can a defendant intelligently exercise his peremptory challenges if he is denied the right to ask proper questions of the venire? With the entire venire being affected by this denial, the defendant is prevented from identifying which venirepersons *209against whom he would best exercise his limited peremptory strikes as he is unable to take into account the answers to the question that he was erroneously denied the right to ask. In effect, the denial “contaminates” the entire venire. Furthermore there is no way a reviewing court could assess a claim of denial of the right to ask proper questions since the appellant would be unable to point to which venirepersons, who actually served on the jury, he would have struck had he been allowed by the trial court to ask the proper question or questions.1 Accordingly, a harm analysis under Rule 81(b)(2) is not possible where a defendant is denied the right to ask a proper question during general voir dire.

The situation in the present case, however, is similar to that presented by individual voir dire in capital cases. As correctly stated in Judge Keller’s well-written opinion, denial of a defendant’s right to ask a proper question of an individual venireperson should be reviewed on appeal using the standard applicable to the erroneous denial of a defendant’s challenge for cause under Article 35.16. Under this standard, a defendant is harmed by the erroneous denial of a challenge for cause only if (1) he exhausts all of his peremptory strikes; (2) he requests more peremptory strikes; (3) his requests for more peremptory strikes are denied; and (4) he identifies an objectionable person who actually served on the jury against whom he would have exercised a peremptory strike had he had one available. Narvaiz v. State, 840 S.W.2d 415, 427 (Tex.Crim.App.1992); cert. denied, 507 U.S. 975, 113 S.Ct. 1422, 122 L.Ed.2d 791 (1993). See also, Janecka v. State, 937 S.W.2d 456, 470 (Tex.Crim.App.1996); Gardner v. State, 733 S.W.2d 195, 212 (Tex.Crim.App.1987), cert. denied, 488 U.S. 1034, 109 S.Ct., 848, 102 L.Ed.2d 979 (1989); Emanus v. State, 526 S.W.2d 806, 808 (Tex.Crim.App.1975).

The underpinning of our holdings in the cases cited above is that where a challenge for cause is erroneously denied with respect to one venireperson, the error is isolated to that one venireperson. ' The harmfulness of the error, since it does not contaminate the general venire, can be readily determined using the analysis established by this Court in Emanus and its progeny.

Conceptually, the error in the present case is very much like the erroneous denial of a defendant’s challenge for cause to an individual venireperson in a capital case: it only affected the three venirepersons (Pulis, Wei and Shaffner) appellant wanted to question before the bench and out of the hearing range of the venire. Therefore, the same analysis set forth in Emanus, Janecka, and Narvaiz is readily applicable here. I note appellant did use all his peremptory strikes and struck the three venirepersons to whom he was denied the right to ask a proper question.2 Appellant did not ask for any additional peremptory strikes, nor did he identify any persons who actually served on the jury against whom he would have exercised a peremptory strike had he had one available. Appellant did not, at any point, ask for additional peremptory strikes. Accordingly, appellant fails to demonstrate any harm resulted from the denial of his right to ask a proper question of the three venireper-sons.

In my opinion, one standard should be applicable to determine whether reversible error results from the denial of the right to ask a proper question (or questions) of an individual venireperson in both capital and noncapital cases: the standard set forth and followed by this Court in Emanus, Narvaiz, Janecka and numerous other cases to determine if the erroneous denial of a challenge for cause is reversible error. Our holding in Nunfio, applicable where the denial of the right to ask a proper question of the general venire (holding that such denial is, in effect, automatic reversible error), is, accordingly, *210not applicable to the present ease.3

With these comments, I join the opinion of the Court.

. It appears to me that denial of the right to ask proper questions of the venire would in some instances also impermissibly infringe on a defendant’s right to make challenges for cause under Texas Code of Criminal Procedure Article 35.16.

. The question concerned their ability to be “fair and impartial,” given their personal backgrounds, to appellant, charged with aggravated sexual assault of a child.

. I believe the issue presented in this case is the denial of the right to ask a proper question of venirepersons and not one involving the discretion of a trial court in limiting voir dire. Accordingly, I have not addressed the applicability of Ratliff v. State, 690 S.W.2d 597 (Tex.Crim.App.1985). Assuming, arguendo, Ratliff is applicable, Judge Keller correctly notes in her opinion appellant could not prevail as he fails to identify any objectionable venirepersons that actually served on the jury, nor did he ask for additional peremptory strikes.