dissenting.
I respectfully dissent. I believe this Court should reverse the judgment of the trial court and remand the cause.
In his first point of error, appellant contends that the trial court erred in granting the State’s motion to shuffle the names of the jury panel. Appellant argues that this was error because the venire already had been shuffled once.
Article 35.11 mandates that upon demand of the defendant, his counsel, or the State, the trial judge shall shuffle the names of the jurors on the panel. Williams v. State, 719 S.W.2d 573, 574 (Tex.Crim.App.1986). The statute’s phraseology reflects the rule that there be no more than one shuffle in each case. Contreras v. State, 733 S.W.2d 646, 648 (Tex.App.—San Antonio, no pet.).
Appellant correctly cites Fontenot v. State, 379 S.W.2d 334, 334-35 (Tex.Crim.App.1964), for the proposition that it is error for a court to allow more than one shuffle. In Fontenot, the Court of Criminal Appeals held that the trial court erred in allowing the State a shuffle after it already had granted the defendant a shuffle. Id. at 336 (Woodley, J., dissenting).
Similarly, the Court of Criminal Appeals has held that the statute does not empower a defendant to repeated shuffles. Latham v. State, 656 S.W.2d 478, 481 (Tex.Crim.App.1983); Smith v. State, 648 S.W.2d 695, 696 (Tex.Crim.App.1983).
Appellant also cites Stark v. State, 643 S.W.2d 187 (Tex.App.—Austin 1982) (“Stark I”), rev’d, 657 S.W.2d 115 (Tex.Crim.App.1983) (“Stark II”). In Stark I, the Austin Court of Appeals stated, “It is plain that art. 35.11 contemplates only one shuffle of the jury panel, be it at the request of the State or at the request of one or more of the defendants. The purpose of the jury shuffle is, after all, to insure a random list of jurors. ... That purpose, the random seating of the panel members, may be achieved by one shuffle whether made in response to a motion of the State or the defendant.” Stark I, 643 S.W.2d at 189.
In Stark II, the Court of Criminal Appeals considered two questions on appeal: (1) did the trial court err in granting a second shuffle; and (2) did the trial court *40err by requiring the defendant to attend a courtroom, different from that in which he was to be tried, to observe the jury panel before making a decision about demanding a shuffle. Stark II, 657 S.W.2d at 116. In overruling the Court of Appeals’ decision, the Court of Criminal Appeals stated only that the trial court had erred in requiring the defendant to attend a different courtroom to observe the venire and make his decision about whether to demand a shuffle. Id. Therefore, the Court of Criminal Appeals tacitly affirmed the Court of Appeals’ holding that the rule in Texas is “one shuffle, one case.”
The majority also reasons that in order to show reversible error when a trial court has granted an improper shuffle, an appellant must show harm. I respectfully disagree with this holding. All the case law considering error when a defendant has been denied a shuffle to which he is entitled has concluded that harm need not be shown. Smith v. State, 648 S.W.2d at 696.
For these reasons, I believe that we should hold that the trial court erred in granting the State’s motion to shuffle after it had already granted such a motion for appellant.
In my opinion, we should sustain the first point of error, reverse the judgment, and remand the cause to the trial court for a new trial.