Anson v. State

BAIRD, Judge,

dissenting.

The majority opinion reflects either a purposeful distortion of our precedent or a fundamental misunderstanding of our precedent. Because neither is acceptable, I dissent.

I. Purposeful Distortion

The majority relies on Janecka v. State, 937 S.W.2d 456, 470-71 (Tex.Cr.App.1996), and Narvaiz v. State, 840 S.W.2d 415, 427 (Tex.Cr.App.1996), to state: “We have recently recognized that the harm analysis we have traditionally applied to the erroneous denial of a defendant’s challenge for cause also applies to the erroneous prohibition of proper questioning of individual prospective jurors.” This statement is patently false.

Neither of the cited cases support the majority’s holding. Janecka holds the denial of a proper question to an individual venire-member is harmless unless appellant exhausted his peremptory strikes. Id., 937 S.W.2d at 470-471. In the instant case, appellant exhausted his peremptory strikes. TR. Vol. I, pg. 239. Therefore, Janecka has no application to the case at bar. And, in Narvaiz the issue was whether the alleged error in denying the defendant’s challenge for cause was preserved for appellate review. That is not the ease here. Appellant did not challenge any of the three complained of veniremembers for cause. Therefore, Nar-vaiz has no application to the instant case.

To hold this case is controlled by Janecka and Narvaiz is sheer sophistry.

II. The Fundamental Misunderstanding Of Law

The majority evinces a fundamental misunderstanding of law by misapplying a preservation of error analysis as a harm analysis.

In the instant case, the trial judge erred in failing to permit appellant to question three veniremembers. To preserve the issue for appellate review, the defendant must demonstrate only that he sought to ask a proper question which the trial judge denied. Cockrum v. State, 758 S.W.2d 577, 584 (Tex.Cr.App.1988); Caldwell v. State, 818 S.W.2d 790, 794 (Tex.Cr.App.1991); Allridge v. State, 762 S.W.2d 146, 163 (Tex.Cr.App.1988); Gardner v. State, 730 S.W.2d 675, 689 (Tex.Cr.App.1987); Nunfio v. State, 808 S.W.2d 482, 484 (Tex.Cr.App.1991); and, Smith v. State, 703 S.W.2d 641, 643 (Tex.Cr.App.1985).

If the appellate court determines the trial judge denied a proper question, the error is reversible. Nunfio, 808 S.W.2d at 484; Smith v. State, 513 S.W.2d 823, 826 (Tex.Cr.App.1974); Maddux v. State, 862 S.W.2d 590, 591 (Tex.Cr.App.1993); Woolridge v. State, 827 S.W.2d 900, 906, 907 (Tex.Cr.App.1992); Allridge, 762 S.W.2d at 163; Cockrum, 758 S.W.2d at 584; Smith, 703 S.W.2d at 643; Powell v. State, 631 S.W.2d 169,170 (Tex.Cr.App.1982); and, Mathis v. State, 576 S.W.2d 835, 837 (Tex.Cr.App.1979). This is so because, by prohibiting a proper question, appellant was denied his right to intelligently exercise his peremptory challenges. Linnell v. State, 935 S.W.2d 426, 430 (Tex.Cr.App.1996); and, 42 G. Dix & R. Dawson, TEXAS PRACTICE: Criminal Practice and Procedure § 35.33 (1995).1

*211The majority believes the instant error would have been cured had appellant asked for and received three additional peremptory strikes. However, similar positions have been raised and summarily rejected.

The suggestion has been made that perhaps denial of a proper question to a particular venireman might be rendered harmless by the granting of an additional strike. However, this ignores the fact that the particular venireman’s answer to the precluded question might have caused counsel not to strike him as easily as it could to strike him. We do not know what the answer to the question would have been. If the particular venireman is struck, we have no way of knowing whether the granting of an extra strike cures anything. It certainly does not return the struck venireman to the jury panel.

42 G. Dix & R. Dawson, TEXAS PRACTICE: Criminal Practice and Procedure § 35.38 (1995) (emphasis in original) (internal quotations and citations omitted).

III. Conclusion

The majority has either purposefully distorted our precedent or relied upon a fundamental misunderstanding of settled law. Accordingly, I dissent.2

OVERSTREET, J., joins this opinion.

. While it is important for the parties to identify veniremembers who hold views unfavorable to their case, it is equally important for the parties to determine which veniremembers hold favorable views. And, without the veniremember's answer to a proper question, it is impossible for the parties to know the veniremember’s views. Because the parties are permitted to know those views, they are denied the necessary information to intelligently decide whether to peremptorily strike or not strike a veniremember when proper questioning is not allowed.

I am quite confused by Judge Meyers concurring opinion wherein he chose to write separately "to question why [the majority’s] analysis appears to bypass entirely the harmless error rule provided for in the rules of appellate proce*211dure?” His question was answered in Nunfio where the Court unanimously held the error in the denial of a proper question "is not subject to a harm analysis under Rule 81(b)(2).” 808 S.W.2d at 485. Judge Meyers'personally recognized this in Zinger v. State, 932 S.W.2d 511, 515 (Tex.Cr.App.1996)(Meyers, J., concurring.), where he stated the high degree of confidence required by Rule 81(b)(2) “can never be met in the case of jury selection error because the task is intrinsically too speculative.”

. The parties who appear before this Court have every right to believe their issues will be resolved in a fair and impartial manner. Making decisions in this manner is the sole source of our credibility. When a majority of this Court reaches out to resolve issues not raised by the parties, the majority acts as partisan advocates, not as impartial jurists.

In the instant case, we granted review to determine whether the trial judge erred in precluding appellant from individually questioning three veniremembers. But, the majority does not address this ground for review. Instead, the majority holds the error was not preserved. This is not a part of the decision of the Court of Appeals nor did the State file a cross-petition urging our consideration of this issue. Therefore, rather than acting as impartial jurists, the majority acts as partisan advocates advancing an agenda of reaching results which ultimately benefit the State.