Johnson v. State ( 1983 )

ON MOTION FOR REHEARING

KENNEDY, Justice,

concurring.

I concur in overruling the State’s motion for rehearing. The record shows that Mrs. Leonard was qualified for jury service, that the Court excused her on its own motion, and that the State exhausted all of its peremptory challenges.

To the reasoning expressed in the majority opinion I would add that TEX. CODE CRIM.PROC.ANN. art. 35.03 (Vernon 1966) has no application to the situation in this case. Art. 35.03 allows the trial court to excuse a person summoned for jury service if he “deems the excuse sufficient.” By its placement in the Code of Criminal Procedure before those articles regulating impanelment of the venire panel and by its application through the years, art. 35.03 is limited in scope to those excuses heard and determined before the clerk draws “the names of a sufficient number of jurors from which a jury may be selected to try a case” pursuant to TEX.CODE CRIM. PROC.ANN. art. 35.11 (Vernon 1966). I believe that once the venire panel has been impaneled, art. 35.03 has no application. At that point the trial court should not, on his own motion, excuse a prospective juror unless he is absolutely disqualified. Hawkins v. State, 628 S.W.2d 71 (Tex.Cr.App. 1982); Esquivel v. State, 595 S.W.2d 516 (Tex.Cr.App.1980); Valore v. State, 545 S.W.2d 477 (Tex.Cr.App.1977).

Where a qualified juror has been erroneously excused and the State has exhausted all of its peremptory challenges, harm is shown. Payton v. State, 572 S.W.2d 677 (Tex.Cr.App.1978). It is not necessary for the appellant to show that the prospective juror would have served except for the trial court action when the State has exhausted its peremptory challenges. Mitchell v. State, 645 S.W.2d 295 (Tex.Cr.App.1983).

I agree that the motion for rehearing should be overruled.