Jones, Charles Edward ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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PD-0230-06

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CHARLES EDWARD JONES, Appellant

v.

THE STATE OF TEXAS

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ON DISCRETIONARY REVIEW OF CASE 01-03-00651-CR OF THE FIRST COURT OF APPEALS HARRIS COUNTY

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Womack, J., filed a dissenting opinion, in which Keasler, Hervey, and Cochran, JJ., joined.

Surely a court errs when it prevents a defendant's counsel from posing a proper question to a potential juror. But why should anyone think that such an error violates the Texas Constitution's guaranty that, "In all criminal prosecutions the accused … shall have the right of being heard by … counsel"? ⁽¹⁾

Consider what an accused's counsel does to have the accused heard in the trial (let alone the other phases of criminal prosecutions). Counsel may make challenges (both peremptory and for cause) to potential jurors, make an opening statement, object to the evidence offered by the State, cross-examine a witness called by the State, offer evidence, request and object to the court's charges to the jury, argue to the jury, and object to the State's argument to the jury.

A court may err in ruling on any of these efforts by counsel. Why is only an error in ruling on a question to a potential juror always of constitutional dimension? The Constitution does not say so. Is it because counsel's question to a potential juror is more "constitutional" than counsel's challenge of a juror, or the introduction of evidence, or the court's charge to the jury, or the argument of counsel? Surely not.

Why, then, does this court say so?

The Court's citational trail of precedents (ante, at 2, n.4) begins with Plair v. State, a "Commissioner's Decision" which said:

Article 4 of Vernon's C.C.P. provides that an accused person shall have the right of being heard by himself or counsel or both. This article of the statute is a literal copy of one section of our bill of rights, and it cannot and ought not to be in any manner abridged. ⁽²⁾

The sentiment is true enough, but the question remains. Why would this, or any, error in one kind of ruling sought by accused's counsel amount to a constitutional violation when no other isolated error does?

This court may reexamine a constitutional decision, giving due weight to the doctrine of stare decisis and to the correctness of the prior decisions. We did so only last month, overruling a constitutional holding on the jeopardy provision in our state constitution. That holding was much newer than the one before us today, but also much more soundly based in reason. ⁽³⁾ Our opinion extensively examined the reasoning of the precedents and the jurisprudence of other states' courts on the same question.

The Plair decision is based on reasoning that, if accepted, should equally make constitutional error of every ruling against an accused when he has been "heard by himself or counsel or both" -- that is, every decision. Why have we applied it to no other kind of error? Does any other judicial system apply it to any kind of error?

I enter my dissent with great respect to this court, but I fear it accords more respect to this precedent than is merited.

Filed: April 4, 2007.

Publish.

1.

Art. I, § 10 ("Rights of accused in criminal prosecutions").

2.

102 Tex. Crim. 628, 630, 279 S.W. 267, 268 (1925).

3.

See Ex parte Lewis, --- S.W.3d --- (Tex. Cr. App. PD-0577-05, January 10, 2007).