Martinez v. State, 60246
| Decision Date | 23 September 1981 |
| Docket Number | No. 60246,60246 |
| Citation | 621 S.W.2d 797 |
| Parties | Thomas MARTINEZ, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
ON APPELLANT'S MOTION FOR REHEARING
A jury found the appellant guilty of murder and assessed a punishment of 23 years' confinement. This appeal was submitted to a panel of this Court, which affirmed the judgment. Rehearing en banc was granted, for reasons which shall appear below. Because it now appears that the appellant's fifth ground of error must be sustained, the panel's opinion will be withdrawn, although (as shall also appear below) we adhere in substance to its discussion of that ground.
The fifth ground complains of the excusing of Venire Member Clifford. At the beginning of the voir dire, the appellant asked the venire if the nature of the offense of murder would keep any member from being a fair juror. Clifford and two other venire members raised their hands. Later in the voir dire these members were called individually to the bench, where the following took place:
The panel's opinion by Judge Clinton treated this ground in the following way (footnotes renumbered):
"In Esquivel v. State, 595 S.W.2d 516, 524 (Tex.Cr.App. 1980) the Court reiterated the well settled rule that:
'A trial judge should not on its own motion excuse a prospective juror for cause unless he is absolutely disqualified from serving on a jury.'
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). 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, third, or fourth cause of challenge in Article 35.16, though both parties may consent.' 1
'Harm may be shown in the erroneous exclusion of a qualified juror by showing the State exhausted its peremptory challenges.'
See also, Pearce v. State, supra. The record before us is not illuminating: Nothing, such as the clerk's jury list showing the peremptory challenges exercised by either side, is included in the record. There is no indication of the required showing of harm. Thus we are constrained to hold that no reversible error has been shown."
In support of his motion for rehearing, the appellant moved to supplement the record with the lists of peremptory challenges. This motion was granted. See V.A.C.C.P. Article...
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