Rich, Rodney L. ( 2005 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. PD-1275-03

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RODNEY L. RICH, Appellant

v.

THE STATE OF TEXAS

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ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE SECOND COURT OF APPEALS TARRANT COUNTY

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   Keasler, J., delivered the opinion of the Court joined by Keller, P.J., and Price, Womack, Hervey, and Cochran, JJ. Johnson, J., dissented. Holcomb, J., filed a dissenting opinion joined by Meyers, J.

During voir dire, the trial judge denied Rodney Rich's request to ask a proper question of the venire. In assessing harm, the Court of Appeals relied on the test for individual voir dire examinations. We conclude that this test does not apply when voir dire is conducted in a group setting rather than individually.

  Factual and Procedural History

Rich was charged with attempted capital murder, attempted murder, aggravated assault, and burglary of a habitation. He pleaded not guilty and the case went to trial. During voir dire, the following transpired:

  [DEFENSE COUNSEL]: Mr. Downey, we've been talking a lot about beyond a reasonable doubt. In other words, the State has to prove all the elements of the offense beyond a reasonable doubt. What does "reasonable doubt" mean to you?

      PROSPECTIVE JUROR: Basically -

      [PROSECUTOR]: Judge, I'm going to object to him trying to get them to -

      THE COURT: I'll sustain the objection.

      [DEFENSE COUNSEL]: In just a minute the Judge will give you some instructions as to what beyond a reasonable doubt is.

      [PROSECUTOR]: I think I'm going to object to that, because that's not the law.

      THE COURT: I agree. I'll sustain the objection. You will not be getting any instructions from me as far as specifically what reasonable doubt is. You will be given an instruction as to how you are to consider. Go ahead if you would, please.

      [DEFENSE COUNSEL]: Your Honor, am I allowed to inquire to the jury as to what their concept of beyond a reasonable doubt is?

      THE COURT: No.

      [DEFENSE COUNSEL]: Very well, Your Honor. Please note our objection.

  Court of Appeals

On appeal, the State conceded, and the Court of Appeals found, that the trial judge erred in not allowing Rich to ask a proper question of the venire. The appellate court found the error harmless under Rule 44.2(b). ⁽¹⁾   Citing Anson v. State, ⁽²⁾   the court held that "voir dire error is deemed harmful when the defendant: (1) exhausts all his peremptory challenges; (2) requests additional peremptory challenges; (3) has this request denied; and (4) identifies an objectionable person seated on the jury on whom he would have exercised a peremptory challenge." ⁽³⁾   Since Rich did not request any additional peremptory strikes, the Court of Appeals concluded that he was not harmed by the error. ⁽⁴⁾    

We granted Rich's petition for discretionary review, in which he argues that the Court of Appeals failed to perform a proper harm analysis.

  Analysis

A trial judge's impermissible exclusion of a proper question during jury voir dire is subject to a harmless error analysis. ⁽⁵⁾   The Court of Appeals found this to be non-constitutional error and applied Rule 44.2(b). Rich does not contest this conclusion, so we assume that to be the proper rule.

Under Rule of Appellate Procedure 44.2(b), we disregard all non-constitutional errors that do not affect the appellant's substantial rights. A substantial right is affected "when the error has a substantial and injurious effect or influence in determining the jury's verdict." ⁽⁶⁾    

Rich argues that the Court of Appeals erred in applying "a capital harm analysis" to this non-capital case. He explains that voir dire is conducted individually in capital prosecutions, but in this case the venire was questioned at large.

Rich errs in basing his argument on the difference between capital and non-capital cases. Trial judges have discretion to order individual voir dire in any case. ⁽⁷⁾ Nevertheless, we agree with Rich that the test in Anson is inapplicable to cases in which voir dire is conducted in a group setting rather than individually. Rich was prevented from asking a valid question to the entire venire. Exhausting his peremptory challenges and requesting additional peremptory challenges would not have remedied the trial judge's error since the error extended to the entire venire.

Instead, a harm analysis in this instance should assess whether the defendant's substantial rights were affected - that is, whether the error had a substantial and injurious effect or influence in determining the jury's verdict. In the case of the erroneous admission of evidence, we have said that the appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case, the jury instructions, the State's theory and any defensive theories, closing arguments, voir dire, and whether the State emphasized the error. ⁽⁸⁾ We believe these same general factors are relevant considerations in determining the harm from being denied a proper question to the venire.

  Conclusion

We reverse the judgment below and remand this case to the Court of Appeals to conduct a proper harm analysis.

DATE DELIVERED: April 13, 2005

PUBLISH

1. ¹ Rich v. State, 114 S.W.3d 54 (Tex. App. - Fort Worth 2003).

2.

² 959 S.W.2d 203 (Tex. Crim. App. 1997).

3.

³ Rich, 114 S.W.3d at 57-58.

4.

⁴ Id. at 58.

5.

⁵ Gonzales v. State, 994 S.W.2d 170, 171 (Tex. Crim. App. 1999); Cena v. State, 991 S.W.2d 283, 283 (Tex. Crim. App. 1999).

6.

⁶ Russell v. State, 2005 Tex. Crim. App. LEXIS 150, 6-7 (Tex. Crim. App. 2005).

7. Tex. Code Crim. Proc. Art. 35.17.

8.

⁸ Motilla v. State, 78 S.W.3d 352, 355-356 (Tex. Crim. App. 2002).