DocketNumber： 71633
Judges： Baird, Mansfield, Clinton, Maloney, Campbell, Keller, White, Meyers
Filed Date： 4/24/1996
Status： Precedential
Modified Date： 11/14/2024
dissenting on State’s Motion for Rehearing.
On original submission appellant’s conviction was reversed for Garrett error
If any court sets aside or invalidates the sentence of a defendant convicted of an offense under Section 19.03, Penal Code, and sentenced to death on the basis of any error affecting punishment only, the court shall not set the conviction aside but rather shall commence a new punishment hearing under Article 37.071 or Article 37.0711 of this code, as appropriate, as if a finding of guilt had been returned.2
We determined the case should be remanded for a new trial, reasoning:
... The question ... is whether the State’s erroneously granted challenge for cause “affects punishment only”. We conclude it does not. We note initially that article 44.29(c) does not set forth a “harmless error test”. Therefore, we do not need to decide whether the error contributed to the conviction or the punishment, but merely whether the error was one “affecting punishment only”. We cannot say that in the case of an erroneously granted challenge for cause that it “affected punishment only”, even though the challenge was based on a punishment issue. This is because the erroneous elimination of a venireperson conceivably affects the composition of the jury, which sits at both guilt and punishment.
Ante at 294, fn. 5 (emphasis in original). The sole issue before us is whether Garrett error affects punishment only.
I. Types of Error
Error is classified as either trial error or structural error. Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). In Fulminante, the United States Supreme Court discussed the differences between these two types of error. The Court held structural errors are those which affect the framework within which the trial proceeds rather than simply an error in the trial process itself. Id. 499 U.S. at 310, 111 S.Ct. at 1265. The Court noted several structural defects: the deprivation of the right to counsel at trial, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); the denial of the right of self-representation, McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984); the denial of an impartial judge, Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927); the unlawful exclusion of members of the defendant’s race from a grand jury, Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986); the denial of a public trial, Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). These cases represent structural defects which defy analysis by harmless-error standards, and require an entirely new trial. Fulminante, 499 U.S. at 309, 111 S.Ct. at 1265.
This Court has acknowledged that certain errors are not subject to a harm analysis under Tex.R.App.P. 81(b)(2).
... the ten day requirement found in [Tex. Code Crim.Proc.Ann. art.] 28.10(a) cannot be subjected to a harm analysis in any meaningful manner, because the record will not reveal any concrete data from which an appellate court can meaningfully gauge or quantify the effect of the error.
Sodipo, 815 S.W.2d at 554 (opinion on original submission). And, we have held other errors defy a meaningful harm analysis. See e.g., Rey v. State, 897 S.W.2d 333, 345 (Tex.Cr.App.1995); Turner v. State, 897 S.W.2d 786 (Tex.Cr.App.1995); Smith v. State, 648 S.W.2d 695 (Tex.Cr.App.1983).
On the other hand, trial error is error which occurs during the presentation of the case to the jury. Fulminante, 499 U.S. at 307, 111 S.Ct. at 1264. Trial error is subject to a harmless error, analysis because it may be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt. Ibid. The Fulminante Court recognized most errors are subject to a harm analysis, even errors of constitutional magnitude. Fulminante, 499 U.S. at 306-307, 111 S.Ct. at 1263 (admission of coerced confession subject to harmless error analysis); Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990) (unconstitutionally overbroad jury instructions can be harmless); Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988) (admission of evidence in violation of the Sixth Amendment Counsel Clause subject to harm analysis); Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (restriction on a defendant’s right to cross-examine a witness for bias in violation of the Sixth Amendment Confrontation Clause); Carella v. California, 491 U.S. 263, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989) (jury instruction containing an erroneous conclusive presumption); and, Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987) (jury instruction misstating an element of the offense). “The common thread connecting these cases is that each involved ‘trial error’ — error which occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt.” Fulminante, 499 U.S. at 307-308, 111 S.Ct. at 1263-64. See also, Harris v. State, 790 S.W.2d 568, 584-588 (Tex.Cr.App.1989).
From this discussion, it follows that, in the context of art. 44.29(e), error “affecting punishment only” is trial error which occurs at the punishment phase of a capital trial and results in only a partial reversal.
II. Garrett Error
Garrett dealt with error which occurred during voir dire. We held a veniremember is not subject to being challenged for cause merely because he indicates he would require more evidence than the legal minimum to affirmatively answer the punishment issue regarding future dangerousness. Garrett v. State, 851 S.W.2d 853, 860 (Tex.Cr.App.1993). See also, Castillo v. State, 913 S.W.2d 529
Although Garrett dealt with a juror’s thoughts and feelings pertinent to a punishment issue at a capital trial, the error did not occur at the punishment phase of the trial. In two similar cases, we treated this type of error as a structural error. In Powell v. State, 631 S.W.2d 169 (Tex.Cr.App.1982), the defendant pled guilty and attempted to voir dire veniremembers to determine their feelings on the differing theories of punishment. We held the topic was proper for voir dire and, therefore, it was an abuse of discretion for the trial judge to prevent the defendant from asking the question. We reversed and remanded for a new trial. Id., 631 S.W.2d at 170. Furthermore, in Campbell v. State, the defendant pled guilty and attempted to voir dire the veniremembers on the theories of punishment. The trial judge prohibited the questioning which the Court of Appeals reversed and remanded, and we affirmed. Id., 667 S.W.2d 221 (Tex.App.—Dallas 1983), and, 685 S.W.2d 23 (Tex.Cr.App.1985).
In these cases harm was presumed because the failure to allow a proper question denied the defendant the intelligent use of his peremptory strikes and, therefore, required a new trial. Smith v. State, 703 S.W.2d 641 (Tex.Cr.App.1985); and, Mathis v. State, 576 S.W.2d 835 (Tex.Cr.App.1979). Although those cases were decided before the adoption of Rule 81(b)(2), in Nunfio v. State, 808 S.W.2d 482 (Tex.Cr.App.1991), we unanimously held such error is not subject to a harm analysis under Rule 81(b)(2). Nunfio, 808 S.W.2d at 485. Because this type of error is not subject to a harm analysis, it is necessarily structural error.
Moreover, it is structural error because it does not fall within Fulminante’s definition of trial error. Id., 499 U.S. at 307, 111 S.Ct. at 1264. First, the error does not occur during the presentation of the case to the jury, instead, it occurs before a jury is empaneled and sworn. Second, the error does not occur at a time when its harm may be quantitatively assessed. There is no means of quantifying the harm because the venire-member is prohibited from serving on the jury. Because the veniremember has been excluded from the jury, the record will not reveal any concrete data from which an appellate court can meaningfully gauge or quantify the effect of the error. Sodipo, 815 S.W.2d at 554.
The majority’s holding that Garrett error is error affecting punishment only is premised upon a flawed interpretation of several of our cases dealing with Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). In those eases, Garcia, Sanne, Phelps, and White, we did not address the points of error alleging violations of Witherspoon because those defendants received life sentences.
... it follows then that Witherspoon error relates only to punishment. And since Witherspoon error relates only to punishment, it further follows that death sentences in trials in which Witherspoon error occurred need only be reversed and remanded for a new punishment determination rather than a new trial on guilt.
Ante at 297.
Reliance on those cases is misplaced for at least two reasons. First, Garrett error is not akin to Witherspoon error and we have so stated. Garrett, 851 S.W.2d at 860, n. 5. In spite of our express statement to the contrary, the majority states: “Witherspoon and Garrett, are, in respects relevant to the present case, indistinguishable.” Ante at 297. This simply is not so.
Secondly, in the capital murder cases where life sentences were imposed, the possibility existed that the trial judge violated Witherspoon in excluding, from the jury, veniremembers who had conscientious or religious scruples against the death penalty but who could set aside those feelings and truthfully answer the punishment issues based on the law and the evidence. These alleged errors had the potential of producing a jury “uncommonly willing to condemn a man to die.” Witherspoon, 391 U.S. at 521, 88 S.Ct. at 1776. However, that potential was not realized if the sentence ultimately imposed was not death. In other words, a life sen-tenee renders the Witherspoon allegations moot. Consequently, in those eases we held: “Witherspoon has no application where the death penalty is not imposed.” See, White, 591 S.W.2d at 858.
However, in the instant case, and our other cases dealing with Garrett error, the death penalty was imposed. Consequently, any error that led to the exclusion of a veniremember from serving on the jury affected the composition of the jury that determined guilt as well as punishment. In this setting, Garrett error has special significance because it results in the exclusion of a veniremember who had an understanding of beyond a reasonable doubt higher than the legal minimum. This is significant because that quantum of proof applies at both the guilt/innocence and punishment phases. Consequently, if a juror’s understanding of reasonable doubt is greater than the legal minimum at punishment, it is also greater at guilt/innocence. Striking veniremembers who maintains this higher standard for punishment also removes them from the determination of guilt. Therefore, Garrett error affects the guilt determination and is not error affecting punishment only. The East-land Court of Appeals recognized this in Purtell v. State, 910 S.W.2d 145, 146-47 (Tex.App.—Eastland, 1995).
IV. Conclusion
Although Garrett error involves a punishment issue, it is not error affecting punishment only. Rather, Garrett error is structural error which pollutes the integrity of the trial process at its source, the jury. Because it is structural error, an entirely new trial is required. Accordingly, the State’s motion for rehearing should be overruled and our opinion on original submission should be affirmed.
. See, Garrett v. State, 851 S.W.2d 853 (Tex.Cr.App.1993).
. All emphasis is supplied unless otherwise indicated.
. The State argues in its Motion for Rehearing that any possible voir dire error was nullified by the State’s remaining peremptory challenges which it could have used to remove any troublesome veniremembers. This argument was correctly rejected by the Court on original submission on the basis of Grijalva v. State, 614 S.W.2d 420 (Tex.Cr.App.1980). Ante at 292.
.Tex.R.App.P. 81(b)(2) provides:
If the appellate record in a criminal case reveals error in the proceedings below, the appellate court shall reverse the judgment under review, unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment.
*308 The federal harmless error standard was established in Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963): "Whether there is a reasonable probability that the evidence complained of might have contributed to the conviction,” and the common law rule which placed on the beneficiary of the error the burden of proving that no injury was suffered as a result of the error. See also, Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967):
... before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.
. This reading is consistent with art. 44.29(b) which deals with a reversal "on the basis of an error or errors made in the punishment stage of the trial."
. The majority correctly notes that not all voir dire error requires reversal. However, those cases where we have characterized such error as harmless deal with an improper limitation of the defendant's voir dire where the limitation was later cured. See e.g., Dinkins v. State, 894 S.W.2d 330, 345 (Tex.Cr.App.1995) (error limiting voir dire of 53rd venireman cured when jury selection concluded with 45th veniremember); Wheatfall v. State, 882 S.W.2d 829, 844 (Tex.Cr.App.1994) (error limiting voir dire cured when venire-member eventually permitted to answer the question) (Baird, J., concurring); Santana v. State, 714 S.W.2d 1, 10 (Tex.Cr.App.1986) (error limiting voir dire on lesser included offense cured when evidence did not raise and trial judge did not charge on lesser offense). However, in situations, like the instant case, where the error results in the excusal of a veniremember for cause at the State’s request, there is no harm analysis. Grijalva, 614 S.W.2d at 420. Consequently, the majority’s reliance on Jones v. State, 843 S.W.2d 487 (Tex.Cr.App.1992), is misplaced.
. In this regard the majority holds that Garrett error is error affecting punishment only, "unless the defendant produces evidence showing that the error necessarily produced a jury biased against the defendant on the issue of guilt.” Ante at 298. This is an impossible burden for at least two reasons. First, Garrett error prohibits the veniremember’s service on the jury. Consequently, it will be impossible to show what the veniremembers verdict would have been or how the veniremember would have interacted with the other jurors and what effect, if any, that interaction would have had on the remaining jurors. Secondly, in order for a defendant to show a biased jury, he would necessarily have to inquire into the jury's verdict. Such an inquiry is prohibited by Tex.R.Crim.Evid. 606(b).
. See, Garcia v. State, 626 S.W.2d 46 (Tex.Cr.App.1981); Sanne v. State, 609 S.W.2d 762 (Tex.Cr.App.1980); Phelps v. State, 594 S.W.2d 434 (Tex.Cr.App.1980); and, White v. State, 591 S.W.2d 851 (Tex.Cr.App.1979).
Sanne dealt with a retrial. At the first trial, the jury returned a negative answer to one of the punishment issues and punishment was assessed at confinement for life. At the retrial, the jury answered the punishment issues in the affirmative and death was assessed. We held that having received a favorable punishment verdict at his first trial, Sanne was not death eligible on retrial. Id., 609 S.W.2d at 766.