Jones v. State

• Decision Date: 08 December 2005
• Docket Number: No. 01-03-00651-CR.,01-03-00651-CR.
• Parties: Charles Edward JONES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Supreme Court

179 S.W.3d 770

Charles Edward JONES, Appellant, v. The STATE of Texas, Appellee.

No. 01-03-00651-CR.

Court of Appeals of Texas, Houston (1st Dist.).

December 8, 2005.

COPYRIGHT MATERIAL OMITTED

Nicole DeBorde, Houston, for Appellant.

Kevin P. Keating, Assistant District Attorney, Charles A. Rosenthal, Jr., District Attorney-Harris County, Houston, TX, for Appellee.

Panel consists of Justices TAFT, JENNINGS, and BLAND.

OPINION ON FURTHER REHEARING

JANE BLAND, Justice.

Appellant, Charles Edward Jones, filed motions for rehearing and for en banc consideration. We granted the motion for rehearing to consider our decision in light of the standard of review established in the Texas Court of Criminal Appeals's opinions in Sanchez v. State, 165 S.W.3d 707 (Tex.Crim.App.2005) and Rich v. State, 160 S.W.3d 575 (Tex.Crim.App.2005). We issued a new opinion on rehearing on July 28, 2005. On August 25, 2005, we ordered that opinion withdrawn pursuant to Texas Rule of Appellate Procedure 50 in order to consider additional authority and to conform our decision with the decision in Wappler v. State, No. 01-01-00389-CR, ___ S.W.3d ___, 2005 WL 3315039 (Tex.App.-Houston [1st Dist.] Dec. 8, 2005, no pet. h.), also issued by our court today. We thus withdraw our opinion dated July 28, 2005, and issue this opinion in its stead. The disposition in the judgment remains unchanged.

A jury found Jones guilty of possession of between one and four grams of cocaine, found two prior felony enhancement paragraphs true, and assessed punishment at 35 years' confinement. On appeal, Jones contends the trial court erred in (1) denying him the opportunity to ask the jury venire a proper question about parole, requiring a new punishment hearing because such error is of constitutional magnitude; and (2) denying his motion to suppress evidence. We affirm.

I. Background

Lieutenant Stephen Casko of the Houston Police Department stopped a car because the driver had not maintained a single lane of traffic. Jones was a passenger in the car, and Jones's brother was the driver. Casko identified the car's occupants and checked their names for outstanding warrants. Because he did not receive a report indicating any outstanding warrants, Casko ended the stop and allowed the driver to continue driving.

Casko's computer system had been having problems that night. About an hour after he released Jones and his brother, Casko received a delayed notification that Jones had an outstanding warrant for his arrest. Casko went to Jones's house, found Jones in the front yard, and placed him under arrest. Casko searched Jones. During the search, Casko found a crack pipe in Jones's left pocket and a pill bottle containing 24 rocks of crack cocaine in his right pocket.

II. Questioning of the Venire about Parole

Jones first contends the trial court erred in refusing to allow his counsel to question the venire about parole. Specifically defense counsel asked the venire, in a group setting, the following question:

If I'm correct on the law, you may receive a jury instruction from the court that you are not to discuss nor consider the matter of parole in any kind of sentence you assess. I would like to ask, is there a juror here who would be unable to follow that instruction.

The State objected to the question, the trial court sustained the objection, and defense counsel noted its exception to the ruling. A trial court abuses its discretion if it denies defense counsel the right to ask prospective jurors a proper question because such a denial prevents the defendant from intelligently exercising his peremptory strikes. Barajas v. State, 93 S.W.3d 36, 38-39 (Tex.Crim.App.2002); Smith v. State, 703 S.W.2d 641, 643 (Tex.Crim.App.1985). In its brief, the State does not dispute that preventing counsel's question about parole was error in that it did not permit counsel to thoroughly interview the venire. See Barajas, 93 S.W.3d at 38-39. The issue in dispute is whether this error was harmful, and which standard of review we are to employ in making such a determination.

A. Constitutional or Non-Constitutional Error

We deal with the fine point of harm analysis with respect to voir dire error in criminal cases. In Gonzales v. State, the Texas Court of Criminal Appeals recognized that an impermissible exclusion of a proper question during jury voir dire is subject to harmless error review. Gonzales v. State, 994 S.W.2d 170, 171 (Tex.Crim.App.1999) (remanding cause for harm analysis based on trial court's impermissible exclusion of proper question about necessity defense during voir dire). If a trial court abuses its discretion in refusing to allow a defendant to ask a proper question during voir dire, then we conduct a harm analysis under Texas Rule of Appellate Procedure 44.2. Id. In so holding, the Gonzales court rejected the argument that voir dire error is structural constitutional error and categorically immune from harm analysis. Id. (citing Cain v. State, 947 S.W.2d 262 (Tex.Crim.App.1997)).¹

Under Rule 44.2, however, two forms of harmless error review exist. First, if the appellate record reveals constitutional error, then a court of appeals must reverse unless it determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. TEX.R.APP. P. 44.2(a). Otherwise, the court of appeals must disregard the error unless it affects the defendant's substantial rights. TEX.R.APP. P. 44.2(b). In Gonzales, the Court of Criminal Appeals remanded the cause for a harm analysis but did not state which form of Rule 44.2 analysis—constitutional or non-constitutional—reviewing courts should employ. 994 S.W.2d at 170. It is this question that the parties present in this case. In answering the question, we discuss the Texas Court of Criminal Appeals's jurisprudence before and since Gonzales.

Even before Gonzales, in Jones v. State, the court held that an improper removal of a juror for cause amounts to constitutional error "[o]nly in very limited circumstances." 982 S.W.2d 386, 390-92 (Tex.Crim.App.1998). The court identified the following examples as errors of constitutional magnitude: (1) "when a juror is erroneously excused because of general opposition to the death penalty" and (2) when a juror is excluded for an "impermissible" reason "such as race, sex, or ethnicity." Id. (citing United States v. Prati, 861 F.2d 82, 87 (5th Cir.1988)).²

Thus, in Jones, as long as the jury that actually serves is impartial, the defendant's constitutional jury right has not been infringed. Id. This holding protects a defendant's core rights, while allowing flexibility and room for human error on the periphery of this right. The examples provided in Jones demonstrate the type of error that impedes jury impartiality and thereby violates a defendant's constitutional right to an impartial jury. 982 S.W.2d at 391.

More recently, in Sanchez v. State, 165 S.W.3d 707 (Tex.Crim.App.2005), the Texas Court of Criminal Appeals determined that a trial court's error in allowing the State to improperly commit jurors to a set of facts is also non-constitutional error, subject to a Rule 44.2(b) analysis. The court observed that:

reviewing courts should assess the potential harm of the State's improper commitment questioning by focusing upon whether a biased juror—one who had explicitly or implicitly promised to prejudge some aspect of the case because of the State's improper questioning—actually sat on the jury. The ultimate harm question is: was the defendant tried by an impartial jury, or, conversely, was the jury or any specific juror `poisoned' by the State's improper commitment questions on a legal issue or fact that was important to the determination of the verdict or sentence?

Id. at 713. Thus, the court applied Rule 44.2(b) to the issue of whether a biased juror actually sat on the jury. See id. More to the point here, in a footnote, the court seemed to recognize that a Rule 44.2(b) analysis should apply "when voir dire is conducted in a group setting and [the] defendant is prohibited from asking a proper question of the panel." Id. at 713 n. 16 (citing Rich v. State, 160 S.W.3d 575, 577 (Tex.Crim.App.2005)).

Our reading of these cases led us to conclude, in our initial opinion on rehearing, that the appropriate harm analysis to employ in this case is Rule 44.2(b). Yet, as our sister panel's opinion in Wappler v. State, No. 01-01-00389-CR, ___ S.W.3d ___ (Tex.App.-Houston [1st Dist.] Dec. 8, 2005, no pet. h.), released today, discusses, such a conclusion on our part may be premature. First, although Sanchez applies a Rule 44.2(b) analysis, that case dealt with improper commitment questions presented to the panel, not with the exclusion of a proper voir dire question. See Sanchez, 165 S.W.3d at 709.

Second, the Texas Court of Criminal Appeals has found the prohibition of proper questions to an individual juror, in the context of a motion for mistrial made after a juror had failed to reveal a significant relationship with the victim, to be error of a constitutional dimension. See Franklin v. State, 138 S.W.3d 351, 354 (Tex.Crim.App.2004).

Finally, although Rich involved the very issue presented here—the exclusion of a proper voir dire question—in that case, the Texas Court of Criminal Appeals applied a Rule 44.2(b) analysis in part because the defendant did not contend that the error was of constitutional magnitude. See Rich, 160 S.W.3d at 577. Nonetheless, in its opinion, the court provided specific guidance for evaluating the harm stemming from the exclusion of a proper voir dire question in a group setting:

In the case of the erroneous admission of evidence, we have said that the appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with...