Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:This case presents a question of the authority of courts to reverse a conviction on appeal on the ground that a juror was absolutely disqualified. HOLDING:The judgment of the court of appeals is reversed, and the appeal is remanded to that court so that it may consider the appellant’s other points of error. The Texas Code of Criminal Procedure Article 44.06 applies only to absolute disqualifications (those that could not be “waived” or, more precisely, consented to) and when the trial court fails to disqualify the absolutely disqualified juror on its own motion. If either party challenged such a juror for cause, the trial court’s ruling on the challenge would be the basis of the appeal. There would be no occasion for Article 44.46 to apply. The error in the court of appeals’ reasoning is highlighted by its citation, “See also Pogue v. State, 553 S.W.2d 368, 370 (Tex. Cr. App. 1977) (holding that where the trial court is on notice of error in seating the panel before the jury is sworn, and the error is not corrected, automatic reversal is required.)” This is the kind of holding that Article 44.46 would prevent, this court states. Also a matter of concern is the court of appeals’ holding, “Even if applicable, article 44.46(1) does not require that the issue be”raised’ in a specific manner.” The statute specifies one important, specific manner in which the issue must be raised in order for Article 44.46(1) to apply: the defendant raises the disqualification before the verdict is entered. Additionally, the usual rule for preservation of error for appeal is Rule of Appellate Procedure 33.1(a), which the court of appeals cited. But it overlooked the first requirement of the rule, which is that “a complaint was made to the trial court by . . . request, objection, or motion.” The appellant made no complaint to the trial court. In fact he did the opposite; he said that he had no objection. Article 44.46 is different from the usual rules of error preservation. It affects cases in which the parties have not challenged jurors for cause as they are required to do. The statute limits the authority of a court to reverse a conviction on appeal on the ground of an absolutely disqualified juror to two kinds of cases, in which “1. the defendant raises the disqualification before the verdict is entered; or 2. the disqualification was not discovered or brought to the attention of the trial court until after the verdict was entered and the defendant makes a showing of significant harm by the service of the disqualified juror.” The clauses are significantly different. Before the enactment of the statute, this court had inferred from Articles 35.16(a) and 35.19 that the seating of an absolutely disqualified juror always called for reversal even when a defendant first raised the question in a motion for new trial. Clause 2. puts a burden on the defendant to meet a new standard of harm in such cases, when the disqualification is raised after the entry of the verdict. In this clause it makes no difference who discovers the disqualification or how it is brought to the attention of the trial court; that portion of the clause is in the passive voice. A duty on the defendant arises in an appeal to make a showing of significant harm. A defendant may have his conviction reversed on appeal, even though he did nothing before the verdict was entered, but only if he meets a high standard that Article 44.46(2) raises on appeal. Presumably some defendants who once could have obtained reversals on appeal merely by showing a disqualification in a motion for new trial now will not obtain reversals because they will not be able to meet the burden to show significant harm. Thus the defendant is discouraged from waiting until after the verdict to begin thinking about the problem of a disqualified juror. The evident purpose of this clause is to deal with the defendant who did not learn, but could have learned, before the verdict that a juror was absolutely disqualified. Clause 1. ,which is in the active voice, puts a duty on the defendant to raise a disqualification before the verdict is entered. If a defendant takes that action, he may obtain a reversal on appeal without carrying a high burden to show harm. This encourages a defendant not only to start thinking about disqualified jurors before the verdict is entered, but to raise the disqualification if he learns of it before verdict. This appellant could have raised, but did not raise, the disqualification before the verdict was entered. He actually did the opposite of raising the issue by telling the court that he had no objection to the disqualified juror. His failure to raise the issue means this judgment of conviction may not be reversed under Article 44.46. OPINION:Womack, J.; en banc.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.