Burkett v. State

• Decision Date: 13 November 1974
• Docket Number: No. 48044,48044
• Citation: 516 S.W.2d 147
• Parties: Joe C. BURKETT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 147

516 S.W.2d 147

Joe C. BURKETT, Appellant, v. The STATE of Texas, Appellee.

No. 48044.

Court of Criminal Appeals of Texas.

Nov. 13, 1974.

Rehearing Denied Dec. 18, 1974.

Malcolm Dade, Dallas, for appellant.

Henry Wade, Dist. Atty., and John E. Rapier, Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ODOM, Judge.

Appellant was charged with selling an obscene magazine; the jury found him guilty of the offense charged and assessed his punishment at a fine of $1,000 and confinement in jail for six months. The appellant does not challenge the sufficiency of the evidence to sustain the conviction. ¹

In his first ground of error, appellant claims that the trial court improperly limited his voir dire examination of the jury panel by refusing to permit him to propound the following question to the members of the panel: 'Do you believe that it is morally wrong for an adult person to have magazines or books in their homes that show pictures depicting sexual intercourse and acts of oral sodomy.'

The rule governing this ground of error was recently reaffirmed in Harnandez v. State, 508 S.W.2d 853 (Tex.Cr.App.1974): '(T)he right to propound questions on voir dire, in order to intelligently exercise peremptory challenges, is of the greatest importance.' Although we further stated in Hernandez v. State, supra, that a showing of injury is necessary when the right is restricted, citing Crowson v. State, 364 S.W.2d 698 (Tex.Cr.App.1963), if the question denied is sought in order to intelligently exercise peremptory challenges, the test for injury is not the same as that where the contention is that a trial judge erred in denying a challenge for cause. In the latter situation the cases are legion that no reversible error is shown unless injury resulted as demonstrated by the defendant having exhausted his peremptory challenges and one or more objectionable jurors having sat on the case. E.g. Ward v. State, 505 S.W.2d 832 (Tex.Cr.App.); Bell v. State, 137 Tex.Cr.R. 401, 129 S.W.2d 664. The rationable for permitting peremptory challenges dictates an entirely different showing of injury where the asking of a question is denied for the reason that the resulting injury is itself of an entirely different nature. The rationale was well stated in Mathis v. State, 167 Tex.Cr.R. 627, 322 S.W.2d 629, at 631:

'It has been long the holding of this court that the constitutional guarantee of the right to be represented by counsel (Bill of Rights, Art. 1, Sec. 10, Vernon's Ann.St.Const.) carries with it the right of counsel to interrogate the members of the jury panel to the end that he may form his own conclusion, after his personal contact with the juror, as to whether in counsel's judgment he would be acceptable to him or whether, on the other hand, he should exercise a peremptory challenge to keep him off the jury. Reich v. State, 94 Tex.Cr.R. 449, 251 S.W. 1072; Barnes v. State, Tex.Cr.App., 88 S.W. 805; Kerley v. State, 89 Tex.Cr.R. 199, 230 S.W. 163; Plair v. State, 102 Tex.Cr.R. 628, 279 S.W. 267; Pendergrass v. State, 121 Tex.Cr.R. 213, 48 S.W.2d 997; Belcher v. State, 96 Tex.Cr.R. 382, 383, 257 S.W. 1097; and Olliff v. State, 161 Tex.Cr.R. 336, 276 S.W.2d 839.

'In the Plair case, supra, it was held reversible error to refuse the request to interrogate the jurors individually as to their views concerning the suspendedsentence law and whether they objected to giving application thereof in a proper case.

'In the Pendergrass case, a liquor case, it was pointed out that the accused was entitled to inquire of the members of the jury panel whether they were prohibitionists.

'In the Reich and Belcher cases, supra, it was held reversible error to refuse to permit the accused to inquire of the jurors whether they were members of the Ku Klux Klan.

'In the Olliff case, it was held that the state was authorized, over objection of the accused, to inquire for the purpose of exercising its peremptory challenges if the jurors or any member of their immediate family or any close friends were members of the religious society known as Jehovah's Witnesses.

'The holding in the cases cited and discussed is based upon the proposition that in order to intelligently exercise their peremptory challenges both the one accused of crime and the state have the right to reasonably examine the jurors to that end.'

What, then, is the test for injury or not when the court denies the asking of a question sought to permit an intelligent exercise of the accused's peremptory challenges? We know from Livingston v. State, 152 Tex.Cr.R. 302, 214 S.W.2d 119, that injury must be shown, and that merely showing the question sought and that it was denied is not sufficient. Although Grizzell v. State,164 Tex.Cr.R. 362, 298 S.W.2d 816, did not involve the denial of a question sought expressly for the exercise of a peremptory challenge, we find the test stated there to be appropriate for this situation, in light of the latitude ² which should be accorded counsel in preparing himself to intelligently exercise his client's peremptory challenges. In Crizzell v. State, supra, on motion for rehearing, at 821, Judge Morrison, speaking for a unanimous court, gave guidance on the issue before us in the following manner.

After setting out the questions which the defendant had sought to ask, and then setting out the trial court's qualification of the bills of exception, which qualifications showed other questions which were asked, it was stated:

'As we view the questions (sought), they were no more than a restatement of what the court's qualification shows was actually asked.

'The trial court must be allowed some discretion in limiting the examination of prospective jurors or some trials would never terminate. We remain conviced that the appellant has failed to show that he has been deprived of any valuable right by the limitation herein assigned as error.' Grizzell v. State, supra, at 822.

We are aware that in Cook v. State, 398 S.W.2d 284 (Tex.Cr.App.), it was stated:

'We are inclined to the belief that in cases of this kind appellant should make a showing in the record what the answer of any venireman would have been to the question propounded. Additionally, he should show that an objectionable juror served on the jury, or that he exhausted his peremptory challenges. Lehman v. State, 172 Tex.Cr.R. 626, 354 S.W.2d 586.'

Lehman v. State, supra, in turn cites Williams v. State, 147 Tex.Cr.R. 178, 179 S.W.2d 297, which stated the rule for showing injury in such cases as requiring a showing:

'. . . that the accused was forced to accept an objectionable juror because of being caused to exercise a peremptory challenge to stand aside one who should have been challenged for cause.'

The rule of Cook and Williams, then, is clearly addressed to questions sought to demonstrate that a prospective juror is subject to challenge for cause. It would be absurd to require a showing that the venireman is subject to challenge for cause as a predicate for error in denying inquiry...