Rios v State

• Decision Date: 14 October 1999
• Citation: 4 S.W.3d 400
• Parties: <!--4 S.W.3d 400 (Tex.App.-Houston 1999) DANIEL RIOS, JR., Appellant, v. THE STATE OF TEXAS, Appellee. NO. 01-96-00627-CR. In The Court of Appeals For The First District of Texas
• Court: Texas Court of Appeals

Page 400

4 S.W.3d 400 (Tex.App.-Houston[1st Dist.] 1999)

DANIEL RIOS, JR., Appellant v THE STATE OF TEXAS, Appellee.

NO. 01-96-00627-CR.

In The Court of Appeals For The First District of Texas.

October 14, 1999.

On Appeal from the 182nd District Court Harris County, Texas Trial Court Cause No. 706771.

Panel consists of Justices Cohen, O'Connor, and Wilson.

O P I N I O N

Murry B. Cohen, Justice.

A jury found appellant guilty of aggravated robbery and assessed punishment at ten years, probated, and a $10,000 fine. We reverse and remand.

FACTS

The victim and her three children were at home on October 9, 1995 when the oldest child opened the door. Two armed men then forced their way in, with masks covering their faces. They tied up the victim and her oldest child and then went from room to room, opening drawers and closet doors, speaking Spanish. They fled when the victim's daughter woke up and screamed. They stole the victim's car, pager, cash, and jewelry. Police found appellant's fingerprints inside the house on a dining room closet door.

VOIR DIRE

In his first point of error, appellant complains the trial judge abused her discretion in limiting the defense's voir dire to 45 minutes. Appellant alleges that, when the allotted 45 minutes had passed, he still had proper voir dire questions to ask the venire; therefore, appellant argues he was unable to exercise his peremptory strikes intelligently.

The trial judge may impose reasonable restrictions on the exercise of voir dire examination. Boyd v. State, 811 S.W.2d 105, 115 (Tex. Crim. App. 1991). However, a trial judge may not restrict proper questions that seek to discover a juror's views on relevant issues. McCarter v. State, 837 S.W.2d 117, 121-22 (Tex. Crim. App. 1992). The standard of review is abuse of discretion. Id. at 119. We must decide whether the questions appellant wanted to ask were proper voir dire questions. Id. at 119-20. Defense counsel described as follows the questions he wanted to ask:

Your Honor, at this time I'm on the third row, and I believe it's juror No. 28. And I would ask for more time for the following reasons:

There's still half of the jury panel that I have to question on jobs that involve entry into homes. And this case involves entry into a home.

Also, I have to ask the following question: Anti-crime organizations. I have not gotten to that. And I also need some more time so that I could touch on the punishment issue, Your Honor. And I would be asking people about punishment and individual jurors as to what they would consider for punishment, what they could, and then get their opinions, more specific opinions than they have expressed about punishment.

For that reason I would request more time.

The State contends this description was too general to preserve error, i.e., it was too general to inform the judge of what appellant wanted to ask. We disagree. The mention of anti-crime organizations was obviously an attempt to question venire members about membership in such organizations and whether that would affect their verdict, as is routinely done in voir dire. The statement about punishment showed appellant's intent to question about more specific areas than just willingness to consider the entire punishment range, as was covered by the prosecutor during his voir dire.

In McCarter, the Court of Criminal Appeals unanimously held the following statement by defense counsel was specific enough to preserve error:

At this time I would request more time. I have more important topics of people that have problems with drugs in their immediate family. I have two questions of prior criminal jury experience and I would have a question of police officers that are involved, whether they personally know these police officers, and I have a question of people that have been accused, also, accused by police officers. She did not go into the question sufficiently enough for me to make a decision on it. . . . I wanted to question those jurors that had a negative experience with police officers . . . that is the question of who had problems with drugs and their immediate family . . . .

837 S.W.2d at 118-19. The court then held the proposed questions were proper and that McCarter did not unreasonably prolong voir dire. Id. at 121-22. Therefore, the court reversed and remanded. Id. at 122.

We follow the court's reasoning in McCarter and hold the judge erred. Counsel's statement showed that the questions on punishment he sought to pose were proper.¹ The State contends appellant wasted time by questioning the venire about the presumption of innocence, but appellant did not spend that time "rambling" or lecturing to the jury; as the State concedes, appellant used the time to question the venire. We conclude that appellant did not waste time during voir dire.

Until recently, this error required automatic reversal. The Court of Criminal Appeals so held unanimously in 1991. Nunfio v. State, 808 S.W.2d 482, 485 (Tex. Crim. App. 1991). This was because the harm was "denial of the ability to intelligently exercise one's peremptory strikes." Id. Analysis of such harm on a case-by-case basis would be "fruitless," the court said, recognizing that "not all errors are such as to be meaningfully subject to a harm analysis." Id.

The law has changed dramatically in the past year. Now, voir dire errors that were considered incapable of harm analysis are, or may be, subject to it. Jury shuffle error is one example. See Roberts v. State,978 S.W.2d 580 (Tex. Crim. App. 1998) (vacating judgment of reversal and remanding for court of appeals to decide whether the jury shuffle error "can be analyzed in terms of harm and, if so, whether any harm occurred."); see also Roberts v. State, No. 12-94-00205-CR, slip op. at 6 (Tex. App.-Tyler Feb. 26, 1999, pet. filed) (op. on remand) (holding that jury shuffle error "defies analysis by harmless error standards.") (designated for publication). The Roberts court on remand held that "the erroneous shuffle resulted in the selection of a jury that may not have been adequately questioned during voir dire" and that appellant could not prove harm nor could the State disprove it. Id. Thus, the Tyler court reversed without conducting a harm analysis. Id. And the Fort Worth court reached a very similar result in Garza v. State, 988 S.W.2d 352 (Tex. App.-Fort Worth 1999, pet. ref'd & pet. granted). In a post-Roberts case, the court concluded that jury shuffle was nonconstitutional error to be reviewed under Tex. R. App. P. 44.2(b). Id. at 356. The court also recognized that assessing harm from an improper shuffle was "impossible." Id. Nevertheless, the Fort Worth court reversed. It said:

. . . . Where a Rule 44.2(b) error does not lend itself to this type of harm analysis, i.e., determining whether a substantial right was affected, neither logic nor Cain requires us to disregard the error.

A defendant's right to a jury [shuffle] is a substantial right. . . . To disregard a jury shuffle error because an appellant is unable to show that the error affected the jury's verdict, would leave to a trial court's discretion the rule governing a jury shuffle.

Id. at 357 (emphasis added, citations omitted). The Fort Worth court refused to do that.

In Cena v. State, decided May 12, 1999 per curiam, the Court of Criminal Appeals considered the same error as here, the refusal to permit a proper voir dire question. 991 S.W.2d 283, 283 (Tex. Crim. App. 1999). The El Paso Court of Appeals had reversed for such error without considering harm, as required by the unanimous Nunfio decision. Cena v. State, 960 S.W.2d 804, 808 (Tex. App.-El Paso 1997), vacated, 991 S.W.2d 283. With little discussion and without using the word "overruled," the court cited, but unanimously refused to follow, Nunfio. Cena, 991 S.W.2d at 283. It held that, for this error, a harm analysis was required,² and it remanded for one to be done. Since then, the court has expressly overruled Nunfio. Gonzales v. State, 994 S.W.2d 170, 172 (Tex. Crim. App. 1999).

What is the standard for review of harm for this error, for which analysis of harm was previously considered fruitless? It is Tex. R. App. P. 44.2(a), the standard for constitutional error because " . . . the right to pose proper questions during voir dire examination is included within the right to counsel under Article I, 10, of the Texas Constitution." Gonzales, 994 S.W.2d at 171.

The Texarkana Court of Appeals has recently applied the constitutional error harm standard and reversed a judgment for the same error that is now before us. On original submission in Gonzales, the Texarkana Court reversed without a harm analysis because of erroneous limitation of voir dire examination. Gonzales v. State, 972 S.W.2d 877, 880 (Tex. App.-Texarkana 1998). Its judgment was reversed by the Court of Criminal Appeals on June 9, 1999 in Gonzales v. State, 994 S.W.2d 170. In its opinion on remand, the Texarkana Court again reversed, this time applying Tex. R. App. P. 44.2(a), the constitutional error rule. Gonzales v. State, 2 S.W.3d 600, 602 (Tex. App.-Texarkana August 31, 1999, no pet. h.) (op. on remand) (designated for publication). Citing Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997), it recognized that there are situations where "a fair and reasoned harm analysis is extremely difficult or impossible to apply." Gonzales, at 603. The Texarkana Court declined to hold the error was "automatically" harmful, but concluded ". . . it is of the type that we believe will rarely be harmless." Id. We agree.

As in Gonzales, the error here harmed appellant by denying him the intelligent use of his peremptory challenges. Compare Roberts, No. 12-94-00205-CR, slip op. at 6 (Tex. App.-Tyler, Feb. 26, 1999, pet. filed) (reversing on remand and holding that jury shuffle error was harmful under rule 44.2(b) because it "resulted in the selection of a jury that may not have been adequately questioned during voir dire"). We...