Roberts v. State , 1998 Tex. Crim. App. LEXIS 134 ( 1998 )

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

Appellant, Bennie Earl Roberts, was convicted by a jury of delivery of a controlled substance and sentenced by the trial court to thirty years confinement. At the end of voir dire and over appellant’s objection, the trial court conducted a jury shuffle, after both sides had questioned jurors. As a result of the shuffle, two members of the jury panel who could not have been reached as originally seated were moved into the strike zone. Appellant exercised a peremptory strike to remove one of them.

The Court of Appeals held that the trial court committed reversible error in conducting a jury shuffle after the conclusion of voir dire. Roberts v. State, No. 12-94-00205-CR, slip op. at 5 (Tex.App.-Tyler August 29,1997, pet. granted) (not designated for publication). We granted the State’s petition for discretionary review to determine whether the Court of Appeals erred in reversing appellant’s conviction for jury shuffle error without conducting a harm analysis.

At the time of its decision, the Court of Appeals did not have the benefit of our decision in Cain v. State, 947 S.W.2d 262 (Tex.Crim.App.1997). There, we said:

Except for certain federal constitutional errors labeled by the United States Supreme Court as ‘structural,’ no error, whether it relates to jurisdiction, voluntariness of a plea, or any other mandatory requirement, is categorically immune to a harmless error analysis. Of course, where the error involved defies analysis by harmless error standards or the data is insufficient to conduct a meaningful harmless error analysis, then the error will not be proven harmless beyond a reasonable doubt under [former] Rule 81(b)(2) [now Rule 44.2],

Id. at 264 (footnote omitted). Therefore, the judgment of the Court of Appeals is vacated, and the case is remanded to that court to consider, in light of Cain and Tex.R.App. P. 44.2, whether the “jury shuffle” error which occurred at trial can be analyzed in terms of harm and, if so, whether any harm occurred.