Franklin, B. J.

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

---

NO. 1481-00

---

B. J. FRANKLIN, Appellant

v.

THE STATE OF TEXAS

---

ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE SIXTH COURT OF APPEALS BOWIE COUNTY

---

   Keasler, J., delivered the opinion of the Court, in which Price, Johnson, Hervey, and Holcomb, JJ., joined. Keller, P.J., filed a dissenting opinion. Cochran, J., filed a dissenting opinion in which Meyers, J., joined. Womack, J., concurred without opinion.

O P I N I O N

We granted review in this case to determine whether the Court of Appeals erred in applying a constitutional harm analysis to the trial court's denial of a mistrial after one of the jurors revealed during trial that she knew the victim. We conclude that it did not.

Facts

During voir dire at B. J. Franklin's trial, defense counsel asked the veniremembers if they knew any of the participants in the trial. None of the jurors indicated that they knew the participants. But when the State called its first witness--the victim--to the stand, Juror Spradlin notified the judge that she knew the victim because Spradlin was the assistant leader of the victim's girl scout troop and that her daughter was also in that troop. Spradlin told the judge that she had not recognized the victim's name during voir dire but recognized the victim when she saw her at trial. The trial judge asked Spradlin if she could listen to the evidence in the case and base her judgment just on what she heard from the stand. Spradlin stated that she could.

Defense counsel moved for a mistrial, stating that if he had known about the relationship between Spradlin and the victim, he would have exercised a peremptory challenge against Spradlin. Defense counsel also requested to ask Spradlin some additional questions about her relationship with the victim. When the trial judge refused to allow additional questioning, defense counsel objected that his client's due process rights were being violated. He stated that he would have asked Spradlin about her relationship with the victim, how long the relationship lasted, whether or not she could set aside that relationship in deciding the case, and whether she would give more or less credence to the victim's testimony and truthfulness due to the relationship. Defense counsel stated that the judge was preventing him from developing any testimony regarding potential biases. The judge overruled defense counsel's objections and denied the motion for mistrial.Procedural History

Franklin was convicted of aggravated sexual assault of a child, and the jury sentenced him to life in prison. Franklin appealed, arguing that the trial court erred in denying the motion for mistrial "based upon a juror's failure to accurately answer questions during voir dire and also because he was unable to intelligently exercise his peremptory strikes as a result of that failure." ⁽¹⁾ The Sixth Court of Appeals affirmed his conviction, finding that although the trial court erred in refusing to permit further questioning of the juror, Franklin failed to preserve error because he did not request to make a bill of exceptions "that would have explored the relationship between the juror and the victim, thus providing information from which [the Court of Appeals] could assess whether the information was truly material." ⁽²⁾

We granted Franklin's petition for discretionary review, which claimed along with three other grounds for review that the information Spradlin withheld was material and that he had preserved the issue for review. We concluded that Franklin had preserved error and that the information withheld by Spradlin was material. ⁽³⁾ We remanded the cause to the Court of Appeals to conduct a harm analysis. ⁽⁴⁾

On remand, the Court of Appeals reversed Franklin's conviction. It determined that the error was of a constitutional dimension subject to harm analysis under Rule 44.2(a). ⁽⁵⁾ The Court of Appeals found that Juror Spradlin's failure to accurately answer counsel's voir dire questions prevented him from intelligently exercising peremptory strikes or from requesting a challenge for cause. ⁽⁶⁾ It reasoned that "a defendant's constitutional right to counsel requires that counsel be permitted to question the jury panel in order to intelligently exercise peremptory challenges," so Spradlin's withholding of material information was of constitutional dimension. And because the trial judge refused to admit information that would have permitted the Court of Appeals to "apply a harm analysis to the juror's failure to answer counsel's voir dire questions accurately," it could not determine beyond a reasonable doubt that the error did not contribute to Franklin's conviction. ⁽⁷⁾

We then granted the State's petition for discretionary review, which contends that the Court of Appeals erred in analyzing the improper limitation of defense questioning for harm under Rule 44.2(a) of the Texas Rules of Appellate Procedure. The State also argues that the Court of Appeals erred in holding that the improper limitation of defense counsel questioning in this case was harmful where the record does not show that the jury was not fair and impartial. Analysis

The State characterizes the error at issue here as follows: "Is there a constitutional right for counsel to ask questions that are relevant only the to the exercise of peremptory challenges?" The Court of Appeals rejected the characterization of the issue in those terms, ⁽⁸⁾ as do we. The error at issue here is the trial judge's denial of a mistrial when, after the trial began, Juror Spradlin revealed that she knew the victim. The trial judge's refusal to allow defense counsel to ask Juror Spradlin questions about her relationship with the victim is considered in the harm analysis, but it is not primarily the error in question. Because the jury had been sworn and the trial had begun, the appellant's only remedy was a mistrial; defense counsel could not have moved to challenge the juror for cause or to peremptorily strike the juror. So, the issue here is what standard of harm should be applied to the trial judge's denial of a mistrial based on the juror's withholding of material information.

Under Texas Rule of Appellate Procedure 44.2, the standard of review for errors of a constitutional dimension differs from the standard for other errors. ⁽⁹⁾ The rule provides that:

(a) Constitutional error. If the record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.

(b) Other errors. Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded. ⁽¹⁰⁾

Was a constitutional right affected by the juror's withholding of material information during voir dire and the judge's subsequent denial of a mistrial, compounded by the trial court's refusal to allow defense counsel to ask questions to develop a record of actual bias or prejudice? We have said before that "[c]onstitutional provisions bear on the selection of a jury for the trial of a criminal case." ⁽¹¹⁾ And while not every error in the selection of a jury violates the constitutional right of a trial by an impartial jury, ⁽¹²⁾ we conclude that the error in this case did violate that right.

The Sixth Amendment guarantees the right to a trial before an impartial jury. ⁽¹³⁾ Part of the constitutional guarantee of the right to an impartial jury includes adequate voir dire to identify unqualified jurors. ⁽¹⁴⁾ And we have consistently held that essential to the Sixth Amendment guarantees of the assistance of counsel and trial before an impartial jury "is the right to question veniremembers in order to intelligently exercise peremptory challenges and challenges for cause." ⁽¹⁵⁾ In Salazar v. State, we held that "where a juror withholds material information during the voir dire process, the parties are denied the opportunity to exercise their challenges, thus hampering their selection of a disinterested and impartial jury." ⁽¹⁶⁾ We also found "[t]hat a juror will state that the fact that he withheld information will not affect his verdict is not dispositive of the issue where the information is material and therefore likely to affect the juror's verdict." ⁽¹⁷⁾ The fact that the juror did not intend to intentionally withhold information "is largely irrelevant when considering the materiality of information withheld." ⁽¹⁸⁾

Here, Juror Spradlin withheld material information--that she was the victim's assistant Girl Scout troop leader, and that her daughter was also in the same Girl Scout troop as the victim--that prevented Franklin not only from intelligently exercising his peremptory challenges but from exercising a challenge for cause as well. And, under Salazar, Spradlin's statement to the trial judge that she could consider the evidence and base her decision on the evidence does not mean that Franklin was not deprived of an impartial jury. ⁽¹⁹⁾ The trial judge, informed of the relationship between Spradlin and the victim, refused to grant a mistrial and denied Franklin the opportunity to discover whether the relationship affected Franklin's right to a trial by an impartial jury.

And the error did not end there. The trial judge also deprived Franklin of the ability to develop evidence of bias or prejudice on the record. In this case, defense counsel told the court:

Had I been allowed to ask questions, I would have asked questions concerning the nature of the relationship with [the victim], how long it had lasted, whether or not she could set aside any of her relationship with [the victim], in sitting in judgment in this particular case, or whether she would tend to give more credence or less credence to [the victim]'s testimony and truthfulness due to that relationship.

Counsel explained that these questions were relevant to Spradlin's "potential biases" and would have uncovered information relevant to a challenge for cause. But the trial court refused to allow counsel to ask these questions, which we interpreted as "a direct order not to ask the questions." ⁽²⁰⁾ The trial judge's refusal to allow defense counsel to ask Juror Spradlin questions regarding the nature and extent of the relationship deprived Franklin of the ability to show actual bias or prejudice. We hesitate to hold Franklin to a burden of showing actual bias or prejudice when the trial judge denied him the ability to develop evidence of actual bias or prejudice on the record. We believe that all of these factors together--Juror Spradlin's failure to reveal her relationship to the victim, the judge's denial of a mistrial, and the trial judge's refusal to allow defense counsel to question Spradlin about her relationship to the victim-- affected Franklin's right to a trial by an impartial jury. So, we conclude that the Court of Appeals properly applied the constitutional standard of harm under Rule 44.2(a).

Judge Cochran's dissent argues that we should apply the federal standard that Franklin must show that Juror Spradlin had actual bias. Under the federal standard, the defendant must not only show that the juror failed to provide an honest answer to a material question during voir dire but also that a correct response would have provided the basis for a challenge for cause. ⁽²¹⁾ What Judge Cochran advocates is not and has never been the standard in Texas. Under Texas law, the defendant must show that the juror withheld material information during voir dire, and the information is withheld despite due diligence exercised by the defendant. ⁽²²⁾ So, "[i]t is not necessary that the concealed information show actual bias; just that it has a tendency to show bias." ⁽²³⁾ The fact that Spradlin had a relationship with the victim, one that many people would consider almost a parental role, certainly has a tendency to show bias.

The State argues that, by analyzing the error for harm under Rule 44.2(a), the Court of Appeals has issued an opinion that conflicts with our reasoning in Jones v. State. ⁽²⁴⁾ In Jones, we found that an error in granting the State's challenge for cause was not of a constitutional dimension. ⁽²⁵⁾ We noted that "while it is true, as appellant argues, that the Constitution guarantees to an accused the right to a speedy trial by an impartial jury, it does not follow that the rejection of [allegedly] unqualified persons for insufficient cause would deprive appellant of that right." ⁽²⁶⁾ Significant in our decision was that "no claim [was] made that the jury, as finally constituted, was biased or prejudiced; or that appellant was deprived of a trial by an impartial jury." ⁽²⁷⁾ We stated that "a defendant has no right that any particular individual serve on the jury. The defendant's only substantial right is that the jurors who do serve be qualified." ⁽²⁸⁾ But here, Franklin's claims stem from the trial court's denial of a mistrial based on Juror Spradlin's revelation during trial that she knew the victim and that this deprived him of a trial by an impartial jury. We find that the State's reliance on Jones is misplaced.

This case is also distinguishable from Johnson v. State, ⁽²⁹⁾ where we held that the erroneous denial of a challenge for cause is subject to a harm analysis under Rule 44.2(b). ⁽³⁰⁾ As we noted in Taylor v. State, when a defendant is prevented from questioning the venire, he is prevented from obtaining information, which implicates constitutional protections. ⁽³¹⁾ But an erroneous denial of a challenge for cause does not prevent the defendant from obtaining information; the defendant has elicited information from the jury with which he can intelligently exercise his challenges for cause or peremptory challenges. Here, Franklin never had the opportunity to challenge Spradlin for cause or to strike her based on her relationship with the victim, and this implicated his constitutional right to a trial by an impartial jury. Because the erroneous denial of a challenge for cause is not at issue here, we are not bound to apply the standard of harm associated with that error.

The Court of Appeals found that because "a defendant's constitutional right to counsel requires that counsel be permitted to question the members of the jury panel in order to intelligently exercise peremptory challenges," the error involved in this case was of constitutional dimension. ⁽³²⁾ We have held that Article I, § 10, of the Texas Constitution guarantees the right to counsel, which includes the right of counsel to question members of the venire panel in order to intelligently exercise peremptory challenges. ⁽³³⁾ But regardless of whether that type of error occurred, we believe that Juror Spradlin's withholding of material information, the judge's denial of a mistrial, and the judge's refusal to allow defense counsel to ask Spradlin additional questions adversely affected Franklin's right to a fair and impartial trial. Because we conclude that the trial court's failure to grant a mistrial after Spradlin revealed that she withheld material information is constitutional error, we need not address whether the error implicated Franklin's right to counsel. So we agree with the Court of Appeals that the proper standard is the constitutional standard, but for a different reason.

Judge Keller's dissent argues that our harm analysis in this case conflicts with our recent decision in Hawkins v. State. ⁽³⁴⁾ In Hawkins, we stated that whether a judge's failure to grant a mistrial constitutes error inherently involves conducting a harm analysis. ⁽³⁵⁾ We said that determining whether there is error involves determining whether the trial judge made a mistake. ⁽³⁶⁾ But here, the issue is not whether the judge made a mistake. We already concluded in Franklin I that the trial judge did make a mistake. ⁽³⁷⁾ And despite the various characterizations of that mistake by the parties and the Court of Appeals, the trial judge's only remedy to correct the error was to grant a mistrial, which he did not do. So, the only issue before us now is whether the Court of Appeals used the proper standard of harm in evaluating that error. Our analysis therefore is not at odds with Hawkins.

Judge Keller's dissent also asserts that our "only real argument for finding a violation of the right to an impartial jury is that there does not exist enough information to determine whether the juror is biased" and that we do not "explain why, from a constitutional perspective, it is not enough that the trial court conducted its own inquiry." ⁽³⁸⁾ She states that there was not any evidence in the record that Juror Spradlin was biased, and in fact that there was evidence that Juror Spradlin was not biased based on her responses to the trial judge's questioning. ⁽³⁹⁾ As we stated before, the issue before us is not whether the trial judge's ruling was error, but what standard of harm to apply to that error. And as we noted in response to Judge Cochran's dissent, the defendant does not have to show evidence of actual bias; the defendant need only show that the juror withheld material information despite the defendant's due diligence in eliciting that information. ⁽⁴⁰⁾  

Judge Keller further states that if we are "contending that there is a constitutional basis for requiring a trial court to allow the parties to question the juror, [we] have not explained what constitutional provision imposes such a requirement or why it does." ⁽⁴¹⁾ But we do not hold here that Franklin had a constitutional right to ask the juror additional questions during trial. What we do hold is that because Franklin was unable to ask those questions during voir dire in order to intelligently exercise his strikes based on that information, he was denied the right to a fair and impartial jury. As we stated before, the fact that the judge would not allow Franklin to ask the juror additional questions at trial compounded the situation since he could not then affirmatively get any evidence of bias on the record.

In its second ground for review, the State argues that the Court of Appeals erred in finding harmful error where the record does not show that the jury was not fair and impartial. The State bases its argument on the premise that the proper standard for evaluating the harm is under Rule 44.2(b), and because Franklin was not denied a fair and impartial jury, the error is harmless. But under Rule 44.2(a), the proper standard of harm in this case, "the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment." ⁽⁴²⁾ The Court of Appeals did not have to find that the jury was not fair and impartial. Instead, the Court of Appeals was required to reverse the conviction unless it determined beyond a reasonable doubt that the trial court's denial of a mistrial after Juror Spradlin revealed that she knew the victim did not contribute to Franklin's conviction or punishment. The Court of Appeals in this case found that because the trial court "refused to admit the information that would have permitted [it] to apply a harm analysis to the juror's failure to answer counsel's voir dire questions accurately," there was an "absence of evidence that would allow [it] to determine beyond a reasonable doubt that the error did not contribute to the conviction." ⁽⁴³⁾ The Court of Appeals properly applied the standard of harm in this case.

Conclusion  

We find that the Court of Appeals did not err in analyzing the trial judge's denial of a mistrial based on a juror's withholding of material information under Rule 44.2(a). ⁽⁴⁴⁾ The Court of Appeals' judgment is affirmed.

DATE DELIVERED: June 30, 2004

PUBLISH

1. Franklin v. State, 986 S.W.2d 349, 352 (Tex. App.--Texarkana 1999).

2.

Id. at 354-55.

3.

Franklin v. State, 12 S.W.3d 473, 479 (Tex. Crim. App. 2000).

4.

Id.

5.

Franklin v. State, 23 S.W.3d 81, 83 (Tex. App.--Texarkana 2000); Tex. R. App. P. 44.2(a).

6. Franklin, 23 S.W.3d at 83.

7.

Id.

8.

Id. at 82-83.

9.

Tex. R. App. P. 44.2.

10.

Id.

11. Jones v. State, 982 S.W.2d 386, 391 (Tex. Crim. App. 1998).

12.

Id.

13.

U.S. Const. amend VI.

14.

Morgan v. Illinois, 504 U.S. 719, 729 (1992).

15.

Raby v. State, 970 S.W.2d 1, 10 (Tex. Crim. App. 1998); Linnell v. State, 935 S.W.2d 426, 428 (Tex. Crim. App. 1996) (citing Nunfio v. State, 808 S.W.2d 482, 485 (Tex. Crim. App. 1991)); Dinkins v. State, 894 S.W.2d 330, 344-345 (Tex. Crim. App. 1995); Burkett v. State, 516 S.W.2d 147, 148 (Tex. Crim. App. 1974); Hernandez v. State, 508 S.W.2d 853, 854 (Tex. Crim. App. 1974); McCarter v. State, 837 S.W.2d 117, 119 (Tex. Crim. App. 1992); Naugle v. State, 118 Tex. Crim. 566, 568, 40 S.W.2d 92, 94 (1931); see also Janecka v. State, 937 S.W.2d 456, 471 (Tex. Crim. App. 1996); Smith v. State, 676 S.W.2d 379, 384 (Tex. Crim. App. 1984); Mathis v. State, 167 Tex. Crim. 627, 628, 322 S.W.2d 629, 631 (1959).          

16.

Salazar v. State, 562 S.W.2d 480, 482 (Tex. Crim. App. 1978).

17.

Id.

18.

Franklin, 12 S.W.3d at 478.

19.

See Salazar, 562 S.W.2d at 482.

20.

Franklin, 12 S.W.3d at 477.

21.

McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556 (1984).

22.

See Jones v. State, 596 S.W.2d 134, 137 (Tex. Crim. App. 1980).

23.

Robert G. Loewy, Note: When Jurors Lie: Differing Standards for New Trials, 22 Am. J. Crim. L. 733, 743 (1995).

24.

Jones v. State, 982 S.W.2d 386 (Tex. Crim. App. 1998).

25.

Id. at 391-92.

26.

Id. at 391.

27.

Id.

28.

Id. at 393.

29.

Johnson v. State, 45 S.W.3d 1(Tex. Crim. App. 2001).

30.

Id. at 2; Tex. R. App. P. 44.2(b).

31.

See Taylor v. State, 109 S.W.3d 443, 451-52 (Tex. Crim. App. 2003).

32.

Franklin, 23 S.W.3d at 83.

33.

Howard v. State, 941 S.W.2d 102, 108 (Tex. Crim. App. 1996).

34.

       Hawkins v. State, No. 571-03, 2004 Tex. Crim. App. LEXIS 899, at * 9 (Tex. Crim. App. May 19, 2004).

35.

       Id.

36.

Id.

37.

Franklin v. State, 12 S.W.3d 473, 478-79 (Tex. Crim. App. 2000).

38.

Post, slip. op. at 6.

39.

Id. at 6.

40.

See Jones v. State, 596 S.W.2d 134, 137 (Tex. Crim. App. 1980).

41.

Post, slip. op. at 6-7.

42.

Tex. R. App. P. 44.2(a).

43.

Franklin, 23 S.W.3d at 83.

44.

Tex. R. App. P. 44.2(a).