Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Authorities charged Robert Gray with intoxication manslaughter and aggravated assault. On the morning of his trial, the venire was seated, and the trial judge made some introductory remarks. Before excusing the venire for lunch, the trial judge asked those who desired to plead “economic excuses” to remain in the courtroom to discuss their circumstances. Venireperson number two was an auto parts salesman and commission employee and the sole income provider for his family. He approached the trial judge and explained: “It is going to make a burden for me because my family because . . . we count on my paycheck every week. . . . If I stay here, I won’t get paid.” The trial judge then excused venireperson number two. Gray’s attorney objected to the excusal of venireperson number two. The jury convicted Gray of intoxication manslaughter and aggravated assault and assessed punishment at 50 years of imprisonment. Gray appealed, claiming that the trial judge erred in excusing a veniremember because of financial hardship. The 13th Court of Appeals reversed the judgment, finding that the trial judge erroneously excused venireperson number two for an economic rather than a job-related reason in violation of Texas Government Code �62.110(c). Furthermore, the 13th Court found that the error was a structural defect that was not subject to a harm analysis. The state petitioned the CCA for discretionary review. The CCA reversed and remanded the case to the 13th Court for a nonconstitutional harm analysis under Texas Rule of Appellate Procedure 44.2(b) on Gray’s claim that the trial judge erred in excusing venireperson number two. On remand, the 13th Court examined the CCA’s plurality opinion in 2002′s Ford v. State and stated that “[w]hen the formation of the jury is the object of the error, appellate courts should consider what right is protected by the violated statute and whether that protected right has been thwarted by the error.” Relying on its first opinion in this case, the 13th Court determined that “the right protected by [�]62.110 is the constitutional right to a venire composed of a fair cross-section of the community.” The 13th Court then concluded that the trial judge erroneously excused venireperson number two in violation of �62.110(c) and that the excusal affected the composition of the venire. Using Ford as a model for its harm analysis, the 13th Court determined that “the trial judge’s violation of [�]62.110 subverted in some fashion the process of assembling the venire.” Finding that it could not “state with fair assurance that the error was harmless[,]” the court of appeals again reversed the judgment and remanded the case for a new trial. The state again petitioned the CCA, which granted review to determine whether the 13th Court considered the wrong factors in its harm analysis of the trial court’s improper excusal of a juror for economic reasons. HOLDING:The CCA reversed the judgment of the 13th Court and affirmed the judgment of the trial court. Section 62.110(c), the court stated, provides in pertinent part that a trial judge “may not excuse a prospective juror for an economic reason unless each party of record is present and approves the release of the juror for that reason.” The state argued that �62.110(c) could not have been intended to protect the right to a venire comprised of a fair cross-section of the community, because it related to the procedures that apply after potential jurors have been summoned to the venire. The Sixth Amendment’s fair cross-section requirement, the state argued, applies to the process by which the venirepersons are summoned to jury duty. The state therefore argued that 13th Court “erred by addressing its harm analysis to a purported constitutional right that does not exist.” Instead, the state contends that �62.110(c) “was implemented to retain an adequate number of venirepersons from which to seat a jury.” The CCA agreed. Consistent with the state’s argument, the CCA stated that a fair and objective reading of �62.110(c) reflected the Legislature’s intent to limit the number of venirepersons who may be excused for an economic reason to maintain an adequate number of venirepersons from which to choose a petit jury. The CCA therefore determined that this, not the Sixth Amendment’s fair-cross-section requirement, was the intent of �62.110(c). Thus, the court stated, to merit reversal for this nonconstitutional error, Gray had a burden to prove that the error “deprived [him] of a lawfully constituted jury.” Gray did not meet this burden, the CCA stated. In the absence of such a showing, the CCA presumed that the jurors were qualified. Under Rule 44.2(b), the CCA stated, the erroneous excusal of venireperson number two did not affect Gray’s substantial rights. Gray’s only substantial right, the CCA stated, was that the jurors who served on the final petit jury had to be qualified. In conclusion, the CCA held that the 13th Court erred by holding that the trial court’s improper excusal of a juror for economic reasons affected Gray’s substantial rights. OPINION:Keasler, J., delivered the opinion for a unanimous court.

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.