Perez v. State

• Decision Date: 09 February 2000
• Citation: 11 S.W.3d 218
• Parties: (Tex.Crim.App. 2000) ORLANDO JAVIER PEREZ, Appellant v. THE STATE OF TEXAS NO. 1430-98
• Court: Texas Court of Criminal Appeals

Page 218

11 S.W.3d 218 (Tex.Crim.App. 2000)

ORLANDO JAVIER PEREZ, Appellant v. THE STATE OF TEXAS

NO. 1430-98

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

February 9, 2000.

ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE THIRTEENTH COURT OF APPEALS CAMERON COUNTY

O P I N I O N

Johnson, J., delivered the opinion of the court, in which Meyers, Mansfield, Price and Womack, JJ., joined. Keller, J., filed a concurring opinion. Holland, J., filed a concurring opinion, in which McCormick, P.J., and Keasler, J., joined.

Appellant Javier Perez was convicted of aggravated assault with a firearm and sentenced to fifteen years confinement. He filed a motion for new trial, alleging that a disqualified juror had sat on his panel. At a hearing pursuant to his motion for new trial, appellant and the state entered into a stipulation of evidence that one of the jurors at appellant's trial had a final conviction for felony driving while intoxicated and that this information was not discovered until after rendition of the verdict. The trial court overruled appellant's motion for new trial on the basis that appellant had made no showing of "significant harm," as mandated by TEX. CODE CRIM. PROC. art. 44.46(2).

COURT OF APPEALS

The Corpus Christi Court of Appeals reversed and remanded. The basis for its ruling was that, as applied to appellant, art. 44.46 was in conflict with TEX. CONST. art. XVI, 2. Art. XVI, 2 provides that

Laws shall be made to exclude from office, serving on juries, and from the right of suffrage, those who may have been or shall hereafter be convicted of bribery, perjury, forgery, or other high crimes. The privilege of free suffrage shall be protected by laws regulating elections and prohibiting under adequate penalties all undue influence therein from power, bribery, tumult or other improper practice.

(Emphasis added.) Art. 44.46 provides that A conviction in a criminal case may be reversed on appeal on the ground that a juror in the case was absolutely disqualified from service under Article 35.19 of this code only if:

(1) the defendant raises the disqualification before the verdict is entered; or

(2) the disqualification was not discovered or brought to the attention of the trial court until after the verdict was entered and the defendant makes a showing of significant harm by the service of the disqualified juror.

Art. 35.19 provides that "[n]o 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." Art. 35.16 provides in relevant part:

(a) A challenge for cause is an objection made to a particular juror, alleging some fact which renders him incapable or unfit to serve on the jury. A challenge for cause may be made by either the state or the defense for any one of the following reasons:

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2. That he has been convicted of theft or any felony;

3. That he is under indictment or other legal accusation for theft or any felony;

4. That he is insane;

(Emphasis added.) The court found that the purpose art. XVI, 2 "is to prohibit felons from serving on juries." Perez v. State, 973 S.W.2d 759, 762 (Tex. App.--Corpus Christi 1998). Therefore, it held that art. 44.46 was unconstitutional as applied to appellant because "through its application, he failed to receive a fair and just trial before a jury composed of twelve qualified persons." Id. Justice Dorsey dissented. Id. at 762-64 (Dorsey, J., dissenting).

We granted the District Attorney's petition for discretionary review on the following ground: As applied to appellant's case, does TEX. CODE CRIM. PROC. art. 44.46 violate TEX. CONST. art. XVI, 2? We also granted the State Prosecuting Attorney's petition for discretionary review on the following ground: Does TEX. CODE CRIM. PROC. art. 44.46 violate TEX. CONST. art. XVI, 2?

ANALYSIS

In its determination that, as applied to appellant, art. 44.46 conflicted with art. XVI, 2, the Court of Appeals first determined that the phrase "high crimes," as it appears in art. XVI, 2, refers to felonies. Perez, 973 S.W.2d at 760 n.3.¹ In his dissent, Justice Dorsey disputed that definition. He argued that the enumerated offenses involve moral turpitude and so indicate that "high crimes" must also involve moral turpitude. Id. at 763-64 (Dorsey, J., dissenting).²

Notably, other provisions of the Texas Constitution refer specifically to felonies. See TEX. CONST. art. III, 14 (Privilege from arrest); TEX. CONST. art. VI, 5 (Privilege of voters from arrest). These two provisions and art. XVI, 2 have appeared, in substantively identical forms, in every constitution since 1845.³ Previous versions of art. VI, 5: TEX. CONST. of 1869, art. III, 2; TEX. CONST. of 1866, art. III, 2; TEX. CONST. of 1861, art. III, 3; TEX. CONST. of 1845, art. III, 3. Thus, the framers of all our constitutions were certainly familiar with the term "felony." If they had meant that persons be excluded from, inter alia, jury duty on the basis of any felony conviction, then presumably, they would have said so. Instead, however, they used the phrase "other high crimes." It appears that something else was meant by that phrase.

What is meant by "other high crimes" can be determined using the rule of statutory construction known as ejusdem generis, which holds that in interpreting general words which follow an enumeration of particular or specific things, the meaning of those general words should be confined to things of the same kind. See, e.g., Ex parte Roquemore, 131 S.W. 1101, 1103-04 (Tex. Crim. App. 1910); Ex parte Muckenfuss, 107 S.W. 1131, 1131-32 (Tex. Crim. App. 1908); see also 2A SUTHERLAND STAT. CONST. 47.17-47.22 (5th ed. 1993); BLACK'S LAW DICTIONARY 517 (6th ed. 1990). In order to harmonize the term "other high crimes" with "bribery, forgery, perjury," that term must be limited to criminal conduct which demonstrates the same type of moral corruption and dishonesty inherent in the specified offenses. See Perez, 973 S.W.2d at 763-64 (Dorsey, J., dissenting); see also Otsuka v. Hite, 414 P.2d 412, 421 (Cal. 1966).⁴

In the instant case, the complained-of juror was convicted of felony driving while intoxicated. This offense, which does not even require a culpable mental state, cannot reasonably be characterized as a "high crime." See TEX. PEN. CODE 49.04 & 49.09(b). Thus, even under the broadest reading of TEX. CONST. art. XVI, 2, the juror was not constitutionally disqualified from serving; rather, the disqualification was statutory. As such, there is no conflict in the instant case between art. XVI, 2 and art. 44.46, and the latter is not unconstitutional as applied to appellant. The District Attorney's and State Prosecuting Attorney's grounds for review are sustained.

Based on the foregoing, the judgment of the Court of Appeals is reversed, and the cause is remanded to that court for proceedings consistent with this opinion.

KELLER, J., delivered a concurring opinion.

HOLLAND J., delivered a concurring opinion, in whick McCORMICK, P.J., and KEASLER, J., joined.

KELLER, J., delivered a concurring opinion.

CONCURRING OPINION

The question in the present case is whether Texas Code of Criminal Procedure, Article 44.46(2) violates Article XVI 2 of the Texas Constitution. I would hold Article 44.46(2) to be constitutional in its entirety.

A. The Court of Appeals' Opinion

The Court of Appeals held that Article 44.46(2) violated Article XVI 2 of the Texas Constitution because the statute "allows juries to be empaneled with persons who have been 'convicted of bribery, perjury, forgery or other high crimes,' thereby destroying the jury's purity." Perez v. State, 973 S.W.2d 759, 762 (Tex. App.--Corpus Christi 1998). The court further stated that the "statute flies in the face of article XVI, section 2, the purpose of which is to prohibit felons from service on juries." Id. In its discussion, the Court of Appeals also briefly referred to Article I 15, which refers to the "purity and efficiency" of the right to trial by jury. Id.

B. The relevant provisions

Article XVI 2 of the Texas Constitution requires the Legislature to enact laws excluding persons convicted of certain crimes from enjoying certain benefits enjoyed by the citizenry, including service as a juror:

Laws shall be made to exclude from office, serving on juries, and from the right of suffrage, those who may have been or shall hereafter be convicted of bribery, perjury, forgery, or other high crimes.

The Legislature enacted a law granting the State and the defendant in a criminal case the right to challenge for cause a prospective juror who "has been convicted of theft or any felony." Texas Code of Criminal Procedure, Article 35.16(a)(2). The Legislature further provided that conviction for a theft or felony is an absolute disqualification, and that a juror subject to such a disqualification may not be seated even by consent of the parties. Texas Code of Criminal Procedure, Article 35.19. But the Legislature also specified that the service of such an absolutely disqualified person would result in reversal of a conviction only under certain circumstances:

A conviction in a criminal case may be reversed on appeal on the ground that a juror in the case was absolutely disqualified from service under Article 35.19 of this code only if:

(1) the defendant raises the disqualification before the verdict is entered; or

(2) the disqualification was not discovered or brought to the attention of the trial court until after the verdict was entered and the defendant makes a showing of significant harm by the service of the disqualified juror.

Article 44.46. The question we confront is whether this limitation on the ability of an appellate court to reverse a conviction violates a constitutional proscription against jury service of persons convicted of certain crimes.

C. Article I 15

First, the Court of Appeals' reliance upon Article I 15 of the Texas Constitution in...