Johnson v. State

666 S.W.2d 518, 1983 Tex. App. LEXIS 5620

Opinions

OPINION

BISSETT, Justice.

This is an appeal from a conviction for murder. Appellant was convicted on June 2, 1982, and sentenced the same day to a term of seven years’ confinement in the Texas Department of Corrections. Appellant appeals to this Court on seven grounds of error.

In his first ground of error, appellant contends that the trial court erred in excusing a juror on its own motion when no challenge had been made to such juror, the juror was not excludable, and appellant objected to her being excused.

We. feel that the Court of Criminal Appeals’ holding in Martinez v. State, 621 S.W.2d 797 (Tex.Cr.App.1981) is dispositive of the case before us. The Court of Criminal Appeals reversed and remanded that case because the trial court erred in excusing a venire person on its own motion. The individual in question was disinclined to accept the responsibility of sitting in judgment of another human being. In that case, the State had exhausted its peremptory challenges, and the Court noted that the action of the trial court was the same as if it had given the State an additional peremptory challenge. Therefore, harm was shown, and reversal was ordered.

In the instant case, the venire person in question was excused by the trial judge simply because she had relatives visiting. Appellant objected to her being excused. The State exhausted all of its peremptory challenges. There was no evidence to show that the venire person in question fell into any of the three categories under TEX. CODE CRIM.PROC.ANN. art. 35.16(a) (Vernon Supp.1982-83), for which impanelment on a jury is forbidden. Neither the State nor appellant challenged this individual for cause. Therefore, we must follow the mandate of the Court of Criminal Appeals. Appellant’s first ground of error is sustained. Therefore, we need not address his remaining grounds of error.

The judgment of the trial court is, accordingly, REVERSED, and the cause is REMANDED.