Frame v. State
Decision Date | 20 May 1981 |
Docket Number | No. 2,No. 66779,66779,2 |
Citation | 615 S.W.2d 766 |
Parties | James Thomas FRAME, Appellant, v. The STATE of Texas, Appellee |
Court | Texas Court of Criminal Appeals |
Robert C. Roe, Jr., Fort Worth, for appellant.
Tim Curry, Dist. Atty., C. Chris Marshall, James J. Heinemann, J. Michael Worley and Howard Borg, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.
Before DALLY, W. C. DAVIS and CLINTON, JJ.
This appeal is taken from a conviction for the offense of burglary of a habitation. The record reflects that after a jury had been impaneled, and the State had presented its case in chief and rested, appellant chose to withdraw his plea of not guilty. He was admonished out of the presence of the jury, and then entered his plea of guilty in open court. 1 Subsequently the jury returned a verdict of guilty, and then assessed punishment at thirty five years imprisonment after appellant pleaded "true" to the allegation of a prior conviction.
In his sole ground of error appellant contends that the trial court erred when the judge excused venireman Johnson because he had been previously convicted of theft. Therefore a recitation of the facts is not necessary to our disposition of this case.
After the voir dire examination had been completed, but before the exercise of any peremptory challenges by either the State or appellant, Mr. Johnson approached the judge and the following exchange occurred outside the presence of the remainder of the prospective jury panel:
"THE COURT: Mr. Johnson, you have called a matter to my attention, and I want to question you a little further about it.
You told me that you were thirteen or fourteen years of age when you were convicted?
(Discussion off the record.)
Thus the trial court sua sponte excused this venireperson over the timely objection by appellant. It appears that the trial judge acted in reliance upon the holding in Johnson v. State, 129 Tex.Cr.R. 162, 84 S.W.2d 240, 241-242 (1935) wherein this Court wrote
Article 35.19, V.A.C.C.P. entitled "Absolute Disqualification" provides that:
"No juror shall be impaneled when it appears that he is subject to the second ... cause of challenge in Article 35.16, though both parties may consent."
Article 35.16, V.A.C.C.P. states:
Appellant has presented us with a question of first impression. Thus our inquiry must begin with a review of the applicable case law. In Esquivel v. State, 595 S.W.2d 516, 524 (Tex.Cr.App.1980) the Court reiterated the well settled rule that:
"A trial court should not on its own motion excuse a prospective juror for cause unless he is absolutely disqualified from serving on a jury." 2
This rule is also stated in Sanne v. State, 609 S.W.2d 762, 770 (Tex.Cr.App.1980); Bodde v. State, 568 S.W.2d 344, 349 (Tex.Cr.App.1978); Valore v. State, 545 S.W.2d 477 (Tex.Cr.App.1977); Moore v. State, 542 S.W.2d 664 (Tex.Cr.App.1976); Pearce v. State, 513 S.W.2d 539 (Tex.Cr.App.1974) and Henriksen v. State, 500 S.W.2d 491 (Tex.Cr.App.1973).
Logically the next question is whether venireman Johnson was "absolutely disqualified" within the meaning of Articles 35.19 and 35.16, supra, as having "been convicted of theft." In Hooper v. State, 126 Tex.Cr.R. 118, 70 S.W.2d 431, at 431 (1934) the Court held that:
"The challenge is not confined to felony theft, but is broad enough to include and comprehend within its meaning any misdemeanor theft."
A conviction for misdemeanor theft is sufficient to constitute an absolute disqualification.
Venireman Johnson was "thirteen or fourteen" at the time of his conviction for misdemeanor theft. The present statute, Vernon's Ann.Civ.Stat., Family Code § 54.02, provides that:
"(a) The juvenile court may waive its exclusive original jurisdiction and transfer a child to the appropriate district court or criminal district court for criminal proceedings if:
(1) the child is alleged to have violated a penal law of the grade of felony;
(2) the child was 15 years of age or older at the time he is alleged to have committed the offense and no adjudication hearing has been conducted concerning that offense; and
(g) If the juvenile court retains jurisdiction, the child is not subject to criminal prosecution at any time for any offense alleged in the petition..."
However, since Mr. Johnson would have been convicted approximately twenty years ago, the law applicable at the time of the offense was contained in Article 2338-1, § 3, Vernon's Ann.Civ.Stat. as follows:
Article 1422 of the Penal Code after 1927 contained the provisions for the punishment for the offense of misdemeanor theft:
"Theft of property under the value of fifty dollars and over the value of five dollars shall be punished by imprisonment in jail not exceeding 2 years, and by fine not exceeding five hundred dollars, or by such imprisonment without fine; theft of property of the value of five dollars or under shall be punished by a fine not exceeding two hundred dollars."
If these two provisions were the only statutes to be considered, our inquiry would end with the result that Mr. Johnson could not have been adjudged a ...
To continue reading
Request your trial-
Holland v. State
...misdemeanor theft is sufficient to constitute an absolute disqualification. Art. 35.19, V.A.C.C.P.; Art. 35.16, supra; Frame v. State, 615 S.W.2d 766 (Tex.Cr.App.1981). As it appears that each of the four prospective jurors in question were properly excused, counsel was under no obligation ......
-
Mayo v. Cockrell, 00-20941.
...as she was absolutely disqualified from jury service under Texas law. TEX.CODE CRIM. PROC. ANN. art. 35.19 (1989); Frame v. State, 615 S.W.2d 766, 769 (Tex.Crim.App.1981). Mayo was convicted and sentenced. Mewis's contract provided that his legal representation of Mayo would terminate with ......
-
Clewis v. State, 05-92-01950-CR
...the appellant to establish the contrary." Lee v. State, 167 Tex.Crim. 608, 322 S.W.2d 260, 262 (Tex.Crim.App.1958); see also Frame v. State, 615 S.W.2d 766, 770 (Tex.Crim.App. [Panel Op.] 1981) (where the record is silent a presumption exists that procedural rules were complied with). For i......
-
Wilkerson v. State, 684-86
...A plea of guilty to a felony offense before a jury, Article 26.14, V.A.C.C.P., is a unitary trial, not a bifurcated one. Frame v. State, 615 S.W.2d 766 (Tex.Cr.App.1981); Arismendez v. State, 595 S.W.2d 535 (Tex.Cr.App.1981). A plea of guilty to a felony before a jury admits the existence o......
-
Jury Selection and Voir Dire
...which occurred about twenty years before the jury service in question is sufficient for an absolute disqualification. Frame v. State, 615 S.W.2d 766 (Tex. Crim. App. 1981). The statutory phrase “other legal accusation” corresponds with the legal definition of “accusation,” specifically a fo......
-
Jury Selection and Voir Dire
...which occurred about twenty years before the jury service in question is sufficient for an absolute disqualification. Frame v. State, 615 S.W.2d 766 (Tex. Crim. App. 1981). The statutory phrase “other legal accusation” corresponds with the legal definition of “accusation,” specifically a fo......
-
Jury Selection and Voir Dire
...which occurred about twenty years before the jury service in question is sufficient for an absolute disqualification. Frame v. State, 615 S.W.2d 766 (Tex. Crim. App. The statutory phrase “other legal accusation” corresponds with the legal definition of “accusation,” specifically a formal cr......
-
Jury Selection and Voir Dire
...which occurred about twenty years before the jury service in question is sufficient for an absolute disqualification. Frame v. State, 615 S.W.2d 766 (Tex. Crim. App. 1981). The statutory phrase “other legal accusation” corresponds with the legal definition of “accusation,” specifically a fo......