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Click here for the full text of this decision FACTS:Through a question directed at the entire venire panel, Charles Edward Jones sought to inquire “whether jurors could give effect to the law that prohibits them from considering, for punishment purposes, whether a defendant will ever be paroled.” The state objected that the question was improper voir dire, and the trial court sustained this objection. Jones objected to the trial court’s ruling, and he subsequently complained on appeal. The state conceded error on appeal but claimed that the error was harmless. The 1st Court of Appeals found that the error was constitutional in nature but that it was harmless. The 1st Court withdrew its first opinion and issued a second opinion, concluding that the error was not constitutional in nature and that it was harmless. HOLDING:Reversed and remanded. A long line of cases, the CCA stated, hold that the right to counsel under the Texas Constitution includes the right to pose proper questions during voir dire examination. This right, the CCA stated, entails permitting the questioning of each individual juror; not merely the panel as a whole. Given the briefing and posture of the case, the CCA did not re-examine its precedent to determine whether the Texas Constitution actually provided such a right. Instead, the CCA concerned itself only with the scope of the Texas constitutional right established in its precedents. The state pointed out that not every erroneous exclusion of evidence amounts to a constitutional violation. Rather, the state argued that such exclusion rises to a constitutional magnitude only if the evidence forms such a vital portion of the case that it precludes the defendant from presenting a defense. By analogy, the state argued that the refusal to permit a proper question in voir dire should rise to the level of constitutional error only if precluding the question effectively prevents defense counsel from rendering effective assistance. The state concluded that counsel was not ineffective in this case, because parole was a peripheral issue. The CCA found this argument off point, because the state grounded its argument in the CCA’s 2002 opinion Potier v. State, which grounded its holding upon the historical treatment given by federal courts to exclusion-of-evidence claims arising from the compulsory process clause of the Sixth Amendment and the due process clause of the 14th Amendment to the U.S. Constitution. Thus, the CCA stated that its precedents make clear that the constitutional right to be heard requires permitting the proper question defense counsel wishes to ask, not the one the trial court believes adequately protects the defendant. Analyzing the constitutional right in question, the CCA stated, as one of counsel’s general effectiveness at trial is simply inconsistent with its past cases conferring upon counsel the constitutional right to make his own individualized assessment of each of the prospective jurors. The state also argued that a trial court’s denial of voir dire questioning should be deemed constitutional or nonconstitutional depending on whether the question’s subject matter is constitutional or nonconstitutional in nature. But the CCA also rejected this argument. Thus, the CCA held that under its precedents, the trial court’s failure to permit a proper voir dire question violated the Texas Constitution. OPINION:Keller, P.J., delivered the opinion of the court in which Meyers, Price, Johnson and Holcomb, J.J., joined. DISSENT:Womack, J., filed a dissenting opinion in which Keasler, Hervey, and Cochran, J.J., joined. “Surely a court errs when it prevents a defendant’s counsel from posing a proper question to a potential juror. But why should anyone think that such an error violates the Texas Constitution’s guaranty that,”In all criminal prosecutions the accused . . . shall have the right of being heard by . . . counsel’?”

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