Carroll v. State

• Decision Date: 10 April 2002
• Docket Number: No. 09-97-501-CR.,09-97-501-CR.
• Citation: 74 S.W.3d 414
• Parties: Timothy Earl CARROLL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

74 S.W.3d 414

Timothy Earl CARROLL, Appellant, v. The STATE of Texas, Appellee.

No. 09-97-501-CR.

Court of Appeals of Texas, Beaumont.

Submitted November 14, 2001.

Delivered April 10, 2002.

Tom Brown, Livingston, for appellant.

John S. Holleman, Criminal District Attorney, Alan K. Sumral, Assistant Criminal District Attorney, Livingston, for State.

Before WALKER, C.J., BURGESS and GAULTNEY, JJ.

OPINION ON REMAND

RONALD L. WALKER, Chief Justice.

In an un unpublished opinion, the Court of Criminal Appeals reversed our decision in Carroll v. State, 997 S.W.2d 399 (Tex. App.-Beaumont 1999), and remanded the cause to us "for reconsideration in light of Johnson [v. State, 43 S.W.3d 1 (Tex.Crim. App.2001)]." Carroll v. State, No. 1789-99 (Tex.Crim.App. May 23, 2001). In Carroll, we found trial court error in failing to sustain appellant's challenge for cause of a certain venireperson. Id. at 404-05. However, we failed to proceed to a harm analysis of the previously-found trial error. Before reaching any substantive issue, we must first consider the scope of the instant remand.

It has been held that upon remand from the Court of Criminal Appeals, the exercise of the reviewing function of an intermediate appellate court is limited only by its own discretion or a valid restrictive statute. See Adkins v. State, 764 S.W.2d 782, 784 (Tex.Crim.App.1988). "Moreover, when a case is remanded to a lower appellate court, the jurisdiction originally granted to the court by constitutional and statutory mandate is fully restored by the order of abatement and remand." Id. As was stated by the Court in Garrett v. State, 749 S.W.2d 784, 787 (Tex.Crim.App.1988) (op. on orig. submission), overruled on other grounds by Malik v. State, 953 S.W.2d 234, 239 (Tex.Crim.App.1997):

[F]or this Court to issue an "order of remand" to restrict the court of appeals in renewed exercise of its own jurisdiction, power and authority would seem to be an impermissible and unwarranted abridgement of constitutional grant of same to courts of appeals by Article V, § 6, Constitution of Texas, as implemented by Articles 4.03, 44.24 and 44.25, V.A.C.C.P.

See also McClain v. State, 730 S.W.2d 739, 741 (Tex.Crim.App.1987); Sanchez v. State, 32 S.W.3d 687, 694 n. 8 (Tex.App.-San Antonio 2000, pet. granted); Johnson v. State, 975 S.W.2d 644, 646-49 (Tex.App.-El Paso 1998, pet. ref'd); Calhoun v. State, 951 S.W.2d 803, 806-07 (Tex.App.-Waco 1997, pet. ref'd); Ramirez v. State, 862 S.W.2d 648, 651 (Tex.App.-Dallas 1993, no pet.). We find that established precedent permits us to re-examine the sole issue before us previously, viz: "The trial court abused its discretion in denying Appellant's challenge for cause of potential juror [W.F.] because [W.F.] stated that he could not consider the minimum authorized punishment." Carroll, 997 S.W.2d at 400.

In Johnson, after recognizing the confusing positions taken in past cases on preservation of error and harm, in the context of denials of challenges for cause, see Johnson, 43 S.W.3d at 5 n. 6, the Court resurrects its position, first taken in 1944, that harm is demonstrated, and error held reversible, when a defendant (1) exercises his peremptory challenges on the venire member whom the trial court erroneously failed to excuse for cause, (2) exhausted his peremptory challenges, (3) is denied a request for additional peremptory challenges, and (4) identifies an objectionable juror who sat on the case. Wolfe v. State, 147 Tex.Crim. 62, 178 S.W.2d 274 (1944) (opinion on rehearing). Yet, with the clarification that Johnson provides comes the need to revisit the initial inquiry regarding whether the trial court committed error in the first place. We find, after once again reviewing the voir dire proceeding, that this cause is controlled by the law as expressed in Sadler v. State, 977 S.W.2d 140 (Tex.Crim.App.1998).

Recall that appellant's basic complaint before us, as it was before the trial court, is that venireperson W.F. was challengeable for cause as he was unable to consider the minimum authorized punishment. Appellant's brief sets out the pertinent portion of the voir dire proceeding where W.F. was being questioned at the bench by both counsel for the State and for appellant, along with the trial court. During the initial questioning by trial counsel, W.F. stated that he did not think he could consider the minimum punishment for a habitual felony offender following a conviction for the underlying offense of aggravated robbery. The State then picked up the questioning and presented to W.F. a series of hypothetical fact scenarios in which the prior felony convictions were for non-violent drug offenses, and the underlying aggravated robbery involved a theft of $10 from a 70-year-old victim by verbal threat, and without the use of a weapon. To this set of facts, W.F. responded: "If the offenses were mild enough, I could see where I could—I could at least entertain the thought of 25 years.... I mean, if the prior offenses had been nonviolent and, you know, like I said, just a joint of marijuana or something like that.... No violence involved and I didn't feel like that— the main thing I'm going to look at is whether I feel like that the defendant is going to be a threat to me or my family." The State concluded its questioning of W.F. with the following:

Q.[State] You are going to look at the particular facts of the robbery?

A.[W.F.] Right.

Q. And the particular facts of whatever prior convictions he has had and not just automatically say I could never, no matter what the facts were, consider a sentence of 25 years; is that correct?

A. That's correct.

As we appreciate appellant's argument, he seems to be contending that W.F. was challengeable for cause because he could not consider the minimum punishment of 25 years for the particular facts of appellant's case, thus exhibiting a bias against the law. This argument was rejected by the Court in Sadler when it observed the following:

Jurors must be able to consider the full range of punishment for the crime as defined by the law. "They must be able, in a sense, to conceive both of a situation in which the minimum penalty would be appropriate and of a situation in which the maximum penalty would be appropriate." Fuller v. State, 829 S.W.2d 191, 200 (Tex.Crim.App.1992), cert. denied 508 U.S. 941, 113 S.Ct. 2418, 124 L.Ed.2d 640 (1993). Punishment is thus a fact-bound determination.

Appellant argues that jurors must be willing to consider the entire range of punishment not just for the crime itself, but for the crime as Appellant committed it. Appellant's argument is without merit. The law requires jurors to use the facts to tailor the punishment to the crime as committed by the guilty defendant. As such, it would be nonsensical to rule that a juror who will use the facts to fit the punishment to the crime is unqualified and thus challengeable for cause—such a juror would be doing exactly what the law requires.

Sadler, 977 S.W.2d at 142-43. In the instant case, the State's rehabilitative questioning of W.F. elicited responses indicating W.F. would indeed "tailor the punishment to the crime as committed" by appellant. It was therefore not error for the trial court to refuse to remove W.F. from the venire as he was not challengeable for cause. As no error was committed by the trial court, no harm analysis is necessary. The lone appellate issue is overruled. The judgment and the sentence of the trial court are affirmed.

AFFIRMED.

DISSENTING OPINION

DON BURGESS, Justice.

I vigorously dissent. Obviously I dissent to the result, see Carroll v. State, 997 S.W.2d 399 (Tex.App.-Beaumont 1999), but my real dissent is to the majority's determination of "the scope of the instant remand."

The Scope of the Remand

The Texas Court of Criminal Appeals, in their unpublished opinion,¹ stated:

... The court of appeals did not perform a harmless error analysis. The State petitioned this Court to review the court of appeals' failure to conduct a harm analysis.

This court recently decided that the erroneous denial of a defense challenge for cause is subject to harmless error analysis under Rule 44.2(b) of the Texas Rules of Appellate Procedure. See Johnson v. State, (Tex. Crim.App.2001). Accordingly, we reverse the decision of the court of appeals and remand this cause to the Court of Appeals for reconsideration in light of Johnson.

Clearly the Court of Criminal Appeals agreed with our earlier majority opinion on the issue of whether the trial court erred when it overruled the challenge for cause. If not, they would have adopted Chief Justice Walker's dissenting opinion,² found no error, reversed this court and affirmed the trial court.³ Yet, they remanded this case for a harm analysis as mandated by Johnson v. State, 43 S.W.3d 1 (Tex.Crim.App.2001).

In spite of this, the new majority⁴ now revisits the issue of error, finds no error and affirms the trial court. They do this under the authority of several cases which hold a Court of Appeals may not be restricted on remand by the Court of Criminal Appeals. However, there are more recent cases where the Court of Criminal Appeals has limited the scope of a remand or actually reversed a Court of Appeals for exceeding the scope of a remand. In Connor v. State, 877 S.W.2d 325 (Tex.Crim. App.1994), the court limited the scope of the remand to the motion for new trial issue, thus precluding the Court of Appeals from considering the restitution issue. Id. at 328. (Baird dissenting). In Williams v. State, 790 S.W.2d 643, 645 (Tex.Crim.App.1990), the Court of Criminal Appeals reversed the Court of Appeals and remanded the case for the Court of Appeals "to decide whether the statement in issue was made `in furtherance of' what appellant concedes was an ongoing conspiracy." On remand, Williams v. State, 815 S.W.2d 743 (Tex.App.-Waco 1991), the Court of Appeals affirmed the conviction. Thereafter in Williams v. State, 829 S.W.2d 216,...