Jones v. State

982 S.W.2d 386, 1998 Tex. Crim. App. LEXIS 113, 1998 WL 618992

• Court: Court of Criminal Appeals of Texas
• Decided: September 16, 1998
• Docket: 72135
• Status: Published

Opinions

OPINION

MANSFIELD, Judge,

delivered the opinion of the Court,

in which McCORMICK, Presiding Judge, and KELLER, HOLLAND, and WOMACK, Judges, joined.

On March 22, 1995, a Dallas County jury found appellant, George Alarick Jones, guilty of the April 13, 1993, capital murder of Forest J. Hall.¹ See Tex. Penal Code § 19.03(a)(2). At the punishment stage of trial, the jury answered the special issues in such a manner as to require the trial court to sentence appellant to death. See Article 37.071, § 2(b), (e), & (g).² Direct appeal to this Court was required by law. See Article 37.071, § 2(h). Appellant now brings eight points of error in his brief to this Court. We will affirm the judgment of the trial court.³

In his first and second points of error, appellant argues that the trial court erred in granting, over his objection, the State’s challenge of veniremember Snyder for cause. Appellant argues that the State did not carry its burden of establishing that the challenge was proper under Article 35.16. The record reflects that the State, without citing any particular provision of Article 35.16, challenged Snyder under four different theories but that the trial court granted the challenge under only one of those theories, to wit: that Snyder would, in the words of the trial court, “start an accomplice witness behind other witnesses” with respect to credibility.

To show error in the trial court’s grant of the State’s challenge of Snyder for cause, appellant “must demonstrate one of two things: (1) the trial judge applied the wrong legal standard in sustaining the challenge, or (2) the trial judge abused [his] discretion in applying the correct legal standard.” Vuong v. State, 830 S.W.2d 929, 943 (Tex.Crim.App.), cert. denied, 506 U.S. 997, 113 S.Ct. 595, 121 L.Ed.2d 533 (1992). As an appellate court, we must uphold the trial court’s decision if it was correct under any theory of law applicable to the case, even if the trial court gave an incorrect reason for its decision. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990).

The first theory that the State offered to the trial court in support of its challenge of Snyder was that “[t]his woman will never, ever give an accomplice’s testimony the same weight and credibility that she will [give] other testimony.” Appellant responded that Snyder had “only indicated that she would be skeptical” of an accomplice witness, “[b]ut that if she believed that person, she would give credence to their testimony.” As noted previously, the trial court granted the State’s challenge under this theory.

The record reflects that, during voir dire, the State informed Snyder that an “accomplice” was someone “who may have participated in the crime themselves or ... were there during the commission of the crime.” Subsequently, the State, defense counsel, and the trial court all asked Snyder how she would view accomplice witness testimony. Snyder stated repeatedly, without equivocation or vacillation, that she would be more skeptical of an accomplice witness than of witnesses generally because she would always wonder about the accomplice's motivation for testifying. She also stated, however, that she could accept an accomplice’s testimony, explaining that “it would just come down to whether or not I believed the individual.”

In Hernandez v. State, 563 S.W.2d 947, 950 (Tex.Crim.App.1978), we held that a veniremember was challengeable for cause under Article 35.16(a)(8), for having a bias or prejudice in favor of or against the defendant, if the veniremember could not “impartially judge the credibility of the witnesses.”⁴ In that case, the veniremember stated that she would always believe police officers who testified at trial. Our holding in Hernandez, however, must not be interpreted to mean that a veniremember is challengeable for cause simply because he would be more skeptical of a certain category of witness than of witnesses generally. What we meant in Hernandez was that litigants are entitled to jurors who will be genuinely open-minded and persuadable, with no extreme or absolute positions regarding the credibility of any witness. We could not have meant that jurors must be completely impartial and free of any trace of skepticism toward any category of witness. Complete impartiality cannot be realized as long as human beings are called upon to be jurors. No person sitting as a juror can completely remove his own experiences, beliefs, and values, however hard he may try. Thus, Snyder was not challengea-ble for cause simply because she stated she would be more skeptical of accomplice witnesses than of witnesses generally.⁵ She expressed no extreme or absolute position regarding the credibility of accomplice witnesses. In short, in granting the State’s challenge for cause under the State’s first theory, the trial court applied the wrong legal standard.

The State argues that Snyder was chal-lengeable for cause under our holding in May v. State, 738 S.W.2d 261, 270-271 (Tex. Crim.App.), cert. denied, 484 U.S. 872, 108 S.Ct. 206, 98 L.Ed.2d 158 (1987). The State’s reliance on May is misplaced, however. In that capital murder case, we held that a veniremember was challengeable under Article 35.16(b)(3), for having a bias or prejudice against a phase of the law upon which the State was entitled to rely, when she stated that she would always disregard an accomplice witness’ testimony at the punishment stage of trial and would answer the special issues in such a manner that the defendant would receive a life sentence. Thus, May is easily distinguishable from the case at bar.

The second theory that the State offered to the trial court in support of its challenge of Snyder was that “she is going to require [the State to] prove beyond a reasonable doubt that a person is actually going to be outside the penitentiary before she is ever going to consider [the non-prison segment of society] to be a part of ‘society’ [for the purposes] of [punishment] question number one.” See Article 37.071, § 2(b). Appellant responded that “[a]ll that [Snyder] is requiring is [for] the State [to] meet its burden of proof.”

The record reflects that, in response to a leading question from the State, Snyder stated that it would be “reasonable” for a juror to require the State to prove beyond a reasonable doubt that the defendant would actually be out of prison at a certain time before that juror would consider the non-prison population to be part of “society” for the purposes of the first punishment issue. The State now argues that Snyder’s answer rendered her challengeable under Article 35.16(b)(3).

Before a veniremember can be properly challenged under Article 35.16(b)(3), the law must be explained to him and he must be asked whether he can follow that law regardless of his personal views. Chambers v. State, 903 S.W.2d 21, 29 (Tex.Crim.App.1995). Here, no one explained to Snyder the law regarding the term “society” as used in the first punishment issue. The State should have explained to Snyder that the term “society” was not defined by statute and that, therefore, under Article 3.01, jurors must give the term the meaning that is ordinarily acceptable in common language, regardless of what the State proves at trial. Camacho v. State, 864 S.W.2d 524, 536 (Tex.Crim.App.1993), cert. denied, 510 U.S. 1215, 114 S.Ct. 1339, 127 L.Ed.2d 687 (1994); Rougeau v. State, 738 S.W.2d 651, 660 (Tex.Crim.App.1987), cert. denied, 485 U.S. 1029, 108 S.Ct. 1586, 99 L.Ed.2d 901 (1988). Because the relevant law was not explained to Snyder, she was not challengeable under the State’s second theory.

The third theory that the State offered to the trial court in support of its challenge of Snyder was that she would “never consider prison to be part of ‘society’” for the purposes of the first punishment issue.⁶ Appellant responded that Snyder was not chal-lengeable on the basis of her views regarding the meaning of “society” because no one had explained to her the law regarding that term.

The record reflects that, in response to a question from the trial court, Snyder stated that she would exclude the prison population from her definition of “society” when answering the first punishment issue. The State now argues that her statement rendered her challengeable under Article 35.16(b)(3). As we noted previously, however, no one ever explained to Snyder the law regarding the meaning of the term “society.” Therefore, she was not challengeable under the State’s third theory, either.

The fourth and final theory that the State offered to the trial court in support of its challenge of Snyder was that “this juror is going to impose a higher burden of proof on the State of Texas from the get-go” at both stages of trial. Appellant responded that “once they showed her what the law is, she said that she could follow the law.” The trial court then expressly ruled against the State on this theory.

The record reflects that, initially, Snyder stated that she would hold the State to a standard of proof higher than beyond a reasonable doubt. However, once the legal definition of “reasonable doubt” was explained to her,⁷ Snyder was unwavering in stating that she would follow the law and hold the State only to that standard at both stages of trial. On this record, therefore, we cannot say that the trial court abused its discretion in refusing to grant the State’s challenge under its fourth theory.

In view of the preceding analysis, it is clear that the trial court erred in granting the State’s challenge of veniremember Snyder for cause. The next question is whether the judgment should be reversed because of the error. We must first decide whether the error is constitutional or otherwise, because the standard of review for errors of constitutional dimension is different from the standard for other errors. See Tex.R.App. Proc. 44.2.⁸

Constitutional provisions bear on the selection of a jury for the trial of a criminal case. The Sixth Amendment to the United States Constitution states: “In all criminal prosecutions the accused shall have a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.” The right embodied in this clause of the Sixth Amendment is one that, under the Due Process Clause of the Fourteenth Amendment, states may not deny. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). But the constitutional right to trial by an impartial jury is not violated by every eiTor in the selection of a jury-

Moreover, 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; or that any useful or legitimate purpose would be served by remanding the case for a new trial before another impartial jury. It is significant in this respect, moreover, that no claim is made that the jury, as finally constituted, was biased or prejudiced; or that appellant was deprived of a trial by an impartial jury.

Shettel v. United States, 113 F.2d 34, 36 (D.C.Cir.1940). Only in very limited circumstances, when a juror is erroneously excused because of general opposition to the death penalty (“Witherspoon ” error),⁹ does the exclusion of a juror by an unintentional mistake amount to a constitutional violation. United States v. Prati, 861 F.2d 82, 87 (5th Cir. 1988). Accord, United States v. Gonzalez-Balderas, 11 F.3d 1218, 1222 (5th Cir.), cert. denied, 511 U.S. 1129, 114 S.Ct. 2138, 128 L.Ed.2d 867 (1994). Cf. Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988) (erroneous denial of defendant’s challenge for cause which resulted in loss of peremptory challenge in capital case did not violate constitutional right to impartial jury). Although this is a capital case, the juror was not excused because of her opposition to the death penalty. There was no violation of the Sixth Amendment right.

The people of Texas have the authority to provide greater protections to criminal defendants than those provided in the federal constitution. But as to trial by an impartial jury in criminal cases, they have not. Like its federal counterpart, the Bill of Rights in the Texas Constitution recognizes the right to trial by jury. “In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury.” Tex. Const, art. I, § 10. As we have said previously, there is no significant textual difference between the two constitutional provisions which would indicate that different standards of protection should be applied, and we can conceive of no reason why the impartial-jury requirements in the two constitutions should be diffei’ent. Marquez v. State, 725 S.W.2d 217, 243 (Tex.Crim.App. 1987). A mere error in ruling on a challenge for cause does not violate Article 1, § 10, of the Texas Constitution.

Exclusion of jurors for impermissible reasons (such as race, sex, or ethnicity) may violate other constitutional provisions, but this case involves no such reason. The error in this case was a mistaken application of Article 35.16(b)(3). It is not of constitutional dimension.

We must therefore disregard the error in granting the State’s challenge for cause unless it affected substantial rights. See Tex.R.App. Proc. 44.2(b); Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998). The standard of review in our rule is substantially identical to that in Federal Rule of Criminal Procedure 52(a).¹⁰ See Notes and Comments, Tex.R.App. Proc. 44.2 (1997). Therefore, we first shall consider how the federal courts treat such errors.

It was established early in the federal courts that the incorrect exclusion of a juror did not require reversal of a judgment. Chief Justice Story, sitting as a circuit judge, denied a new trial to a defendant who claimed that Quaker jurors had been excused in error. The Chief Justice reasoned, “Even if a juror had been set aside by the court, for an insufficient cause, I do not know that it is a matter of error, if the trial has been by a jury duly sworn and impaneled, and above all exceptions. Neither the prisoner nor the government in such a case have suffered an injury.” United States v. Cornell, 25 F.Cas. 650, 656 (D.R.I.1820) (No. 14,868).

The full Court adopted the same reasoning in Northern Pacific R.R. Co. v. Herbert, 116 U.S. 642, 6 S.Ct. 590, 29 L.Ed. 755 (1886), in which a juror had been challenged for cause by Plaintiff Herbert and excused by the trial court. The Supreme Court held that, even if there was no cause to excuse the juror, the ruling “did not prejudice the [defendant] company. A competent and unbiased juror was selected and sworn, and the company had, therefore, a trial by an impartial jury, which was all it could demand.” 116 U.S. at 646, 6 S.Ct. 590.

The same holding applies in the trial of criminal cases in federal courts. See, e.g., United States v. Gonzalez-Balderas, 11 F.3d 1218, 1222 (5th Cir.), cert. denied, 511 U.S. 1129, 114 S.Ct. 2138, 128 L.Ed.2d 867 (1994); United States v. Prati 861 F.2d 82, 87 (5th Cir.1988); Shettel v. United States, 113 F.2d 34, 36 (D.C.Cir.1940).

When we look to the jurisprudence of oth- ■ er jurisdictions, we find only decisions which employ the same principle as that of the federal courts.¹¹ See State v. Walden, 183 Ariz. 595, 905 P.2d 974, 988 (Ariz.1995), cert. denied, 517 U.S. 1146, 116 S.Ct. 1444, 134 L.Ed.2d 564 (1996); People v. Holt, 15 Cal.4th 619, 63 Cal.Rptr.2d 782, 937 P.2d 213 (Cal.1997); Wheeler v. People, 63 Colo. 209, 165 P. 257, 258 (Colo.1917); Wells v. State, 261 Ga. 282, 404 S.E.2d 106, 107 (Ga.1991); State v. Clark, 47 Idaho 750, 278 P. 776, 777-78 (Idaho 1929); State v. Kendall, 200 Iowa 483, 203 N.W. 806, 807 (Iowa 1925); Hunt v. State, 321 Md. 387, 583 A.2d 218, 234 (Md.1990); State v. Hurst, 153 Minn. 525, 193 N.W. 680, 682 (Minn.1922); State v. Hill, 827 S.W.2d 196, 199 (Mo.1992); State v. Huffman, 89 Mont. 194, 296 P. 789, 790 (Mont.1931); Bufford v. State, 148 Neb. 38, 26 N.W.2d 383, 386 (Neb.1947); State v. Martinez, 34 N.M. 112, 278 P. 210, 210-11 (N.M.1929); State v. Carson, 296 N.C. 31, 249 S.E.2d 417, 423 (N.C.1978); State v. Wells, 114 S.C. 151, 103 S.E. 515, 516 (S.C.1920); State v. Larkin, 130 Wash. 531, 228 P. 289, 289 (Wash.1924).

The law in Texas for civil cases is like that of the federal courts and the courts of the other states. “It has long been the established rule in this state that even though the challenge for cause was improperly sustained, no reversible érror is presented unless appellant can show he was denied a trial by a fair and impartial jury.” City of Hawkins v. E.B. Germany & Sons, 425 S.W.2d 23, 26 (Tex.Civ.App. — Tyler 1968, writ refd n.r.e.). Accord, R. McDonald, 3 Texas Civil Practice in District and County Courts § 11.11 (1983 rev.). The rule was established more than a century ago. See Couts v. Neer, 70 Tex. 468, 9 S.W. 40 (1888).

For at least sixty-five years, this Court employed an essentially similar doctrine when it confronted a claim that a State’s challenge for cause had been erroneously granted. “Whether the court correctly permitted the state to challenge the jurors for this cause, it is unnecessary for us to decide, because the bills nowhere and in no way show that any objectionable juror was thereby forced upon the appellant. So that, even if the court erred in such a matter, no injury whatever is shown to appellant, and he has no cause to complain because thereof.” Lawson v. State, 67 Tex.Crim. 24, 148 S.W. 587, 588 (Tex.Crim.App.1912). Accord, Holmes v. State, 70 Tex.Crim. 423, 157 S.W. 487 (Tex. Crim.App.1913).¹² We followed this rule until we delivered our opinion on rehearing in Payton v. State, 572 S.W.2d 677 (Tex.Crim. App.1978), which said:

What is the harmful effect upon the accused of an erroneous exclusion sua sponte or on challenge for cause by the State? If the prospective juror is not subject to the alleged disqualification, and if the defendant objects to the trial court’s erroneous exclusion of the venireman, then the effect, from the perspective of the defendant, is the same as if the State had been given an extra peremptory challenge. On this reasoning, harm would be shown if the State exercised all its peremptory challenges on other veniremen. This test for harm is supported by language in Pearce v. State, Tex.Cr.App., 513 S.W.2d 539, where in addressing a challenge to the trial court’s sua sponte dismissal of a venireman this Court wrote:

“There is no showing that the State exhausted its peremptory challenges and that the prospective juror, claimed to have been improperly excused, would have served except for the court’s action.”

In Culley v. State, Tex.Cr.App, 505 S.W.2d 567, on another challenge to the erroneous exclusion of a prospective juror, the court wrote:

“There is no showing that appellant did not have a fair and impartial trial, nor that the State had exhausted its peremptory challenges, one of which might have been used to eliminate the prospective juror.” (Emphasis added.)

We find this test expressed in Pearce and Culley to be appropriate to the issue before us.

Payton v. State, 572 S.W.2d at 680 (footnote omitted).

The statement that there was a “test expressed in Pearce and Culley ” was not justified. Neither of those cases employed, or purported to employ, as a test the fact that the State had not used all its peremptory challenges. The authors simply raised as a point of fact the ability of the State to have excluded the challenged juror. But that ability would not have affected any substantial right of the defendant, because 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. The defendant’s rights go to those who serve, not to those who are excused. Before Payton, we recognized that principle, as do the courts of all the other jurisdictions.

• A second flaw in the reasoning of Payton is the statement that the effect of the erroneous exclusion “is the same as if the State had been given an extra peremptory challenge.” Ibid. This assertion is not correct. Challenges for cause go to legal qualifications of jurors, whereas peremptory challenges are used to eliminate jurors who are thought (or felt) to be undesirable on a partisan evaluation. A juror’s disqualification is not related to the juror’s desirability. It is especially wrong to equate the State’s challenge for cause to a peremptory challenge, because the State has the right to challenge disqualified jurors even when their disqualifications might seem to make them favor the State. See Morrow v. State, 910 S.W.2d 471 (Tex. Crim.App.1995).

By the standards of stare decisis, analysis of precedent, and logic, the holding of Pay-ton is unsupportable. It is also contrary to a policy which we think courts should follow: the liberal granting of challenges for cause. The venire comprises so many jurors who are clearly qualified that it is unnecessary to err by denying a challenge for cause on a close question.

We overrule the holding of Payton v. State that a conviction will be reversed when a juror was erroneously excused and the State used all its peremptory challenges. We return to our previous rule, that the erroneous excusing of a veniremember will call for reversal only if the record shows that the error deprived the defendant of a lawfully constituted jury. There being no such showing in this case, points of error one and two are overruled.

In points of error numbers three, four, and five, appellant argues that the trial court erred in “denying [his] requests to voir dire [the venire] and present evidence [at trial] in regard to parole law and for the trial court to charge the jury thereon.” Appellant argues further that the trial court’s denial of his requests violated his rights under the Sixth Amendment (right to counsel), Eighth Amendment (ban on cruel and unusual punishment), and the Fourteenth Amendment (rights to equal protection of the laws and due process of law).

We have addressed such claims before and have held adversely to appellant. See Rhoades v. State, 934 S.W.2d 113, 118-119 (Tex.Crim.App.1996) (plurality op.); McFarland v. State, 928 S.W.2d 482, 505 (Tex.Crim. App.1996); Lawton v. State, 913 S.W.2d 542, 556 (Tex.Crim.App.1995), cert. denied, — U.S. -, 117 S.Ct. 88, 136 L.Ed.2d 44 (1996); Sonnier v. State, 913 S.W.2d 511, 518, 521 (Tex.Crim.App.1995); Broxton v. State, 909 S.W.2d 912, 918-919 (Tex.Crim. App.1995); Smith v. State, 898 S.W.2d 838, 846-848 (Tex.Crim.App.) (plurality op.), cert. denied, 516 U.S. 843, 116 S.Ct. 131, 133 L.Ed.2d 80 (1995); Willingham v. State, 897 S.W.2d 351, 359 (Tex.Crim.App.1995). We overrule points of error numbers three, four, and five.

In his sixth point of error, appellant complains of the admission in evidence, at the punishment stage, of State’s exhibit 37, which was a photograph of Kindra Buckner’s face taken after her body was found on September 21, 1993.¹³ Appellant concedes that the photograph was not without relevance, “because ... it depicts the damage to the victim’s head.” He “strenuously contends, however, that any such relevance [was] substantially outweighed by the prejudicial effect of the picture.” See Tex.R.Crim. Evid. 403. Appellant insists that the photograph was too gruesome to be admissible.

The record does not contain the photograph in question, but, in its brief, the State describes the photograph as being an eight-inch by twelvé-ineh color photograph of Buckner’s face taken at the scene of the extraneous offense. According to the State, “[a] large hole appears in the face, [and] the teeth are blown outward to one side.” The briefs contain no other information about the photograph.

Once a defendant objects to photographic evidence on the basis of Rule 403, the trial court must weigh its probative value against its potential for unfair prejudice. Narvaiz v. State, 840 S.W.2d 415, 429 (Tex. Crim.App.1992), cert. denied, 507 U.S. 975, 113 S.Ct. 1422, 122 L.Ed.2d 791 (1993). An appellate court reviewing the trial court’s decision may reverse it only for an abuse of discretion, i.e., only when the trial court’s decision was outside the zone of reasonable disagreement. Ibid.

On the record before us, we can discern no abuse of discretion on the part of the trial court in admitting State’s exhibit 37. The photograph in question apparently depicted no more than the gruesome nature of the injuries inflicted by appellant and Martin. Although a crime scene photograph may be gruesome, that fact alone will rarely render the photograph necessarily inadmissible under Rule 403. Id. at 430; Long v. State, 823 (Tex.Crim.App.1991), cert. denied, 505 U.S. 1224, 112 S.Ct. 3042, 120 L.Ed.2d 910 (1992). We overrule point of error number six.

In point of error number seven, appellant contends that the trial court erred when it “denied [his] request for a Rule 403 balancing test” with respect to State’s exhibit 37. Appellant argues that the trial court should have articulated the factors it considered when overruling his Rule 403 objection, so as to facilitate appellate review. See Montgomery v. State, 810 S.W.2d 372, 393 n. 4 (Tex.Crim.App.1990) (opinion on reh’g).

The record reflects that the trial court did not explicitly state into the record its mental process in overruling appellant’s Rule 403 objection to State’s exhibit 37. The record also reflects, however, that appellant did not ask the trial court to do so and did not object when the trial court failed to do so. Any error, therefore, has not been preserved for appellate review. Tex.R.App. Proc. 33.1. We overrule point of error number seven.

In his eighth and final point of error, appellant argues that the trial court erred in overruling his objection to the charge at punishment. Appellant orally objected to the charge “for its failure to give an instruction to the jury on the accomplice witness testimony [of Jamoan Martin] such as the one given in the charge on guilt or innocence.” See Article 38.14. The record reflects that, during the punishment stage, Martin testified about an extraneous murder committed by appellant.

Appellant has shown no error. The accomplice witness rule embodied in Article 38.14 does not apply to testimony offered to prove extraneous offenses at the punishment stage of a capital murder trial. Farris v. State, 819 S.W.2d 490, 507 (Tex.Crim.App. 1990), cert. denied, 503 U.S. 911, 112 S.Ct. 1278, 117 L.Ed.2d 504 (1992). We overrule point of error number eight.

Having found no reversible error, we affirm the judgment of the trial court.

PRICE, J., concurred in the judgment of the Court. BAIRD and MEYERS, JJ., delivered dissenting opinions. OVERSTREET, J., dissented without a written opinion.

1 .The evidence adduced at the guilt/innocence stage of trial, viewed in the light most favorable to the jury's verdict, established that appellant, who was then 19 years old, kidnapped Hall from a shopping center parking lot in Dallas County, that appellant transported Hall in Hall's own car to a rural part of Dallas County, and that appellant then shot Hall twice in the back of the head with a .380 caliber automatic handgun. Appellant does not contest the sufficiency of the evidence to support the verdict at either the guih/in-nocence or punishment stages of trial.

2 . All references to articles are to those in the Texas Code of Criminal Procedure.

3 . The author of this opinion wishes to acknowledge the kind assistance of Womack, J., in the drafting of the discussion of points of error numbers one and two.

4 . Article 35.16(a)(8) has since been renumbered as Article 35.16(a)(9).

5 . Indeed, Snyder’s position was logical, given that accomplice witness testimony is inherently suspect. See Gill v. State, 873 S.W.2d 45, 48 (Tex.Crim.App.1994); Walker v. State, 615 S.W.2d 728, 731 (Tex.Crim.App.1981); Tex.Code Crim. Proc. art. 38.14.

6 . Contrast this with the State’s second theory.

7 . See Geesa v. State, 820 S.W.2d 154, 162 (Tex.Crim.App.1991).

8 . Texas Rule of Appellate Procedure 44.2 provides in relevant part:

(a) Constitutional error. If the appellate 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.

9 . Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

10 . "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." Fed. R.Crim. Proc. 52(a).

11 . One state’s legislature enacted a contrary rule by statute to abolish the effect of its court's jurisprudence. Compare La.Code Crim. Proc. art. 800 with, e.g., State v. Claire, 41 La. Ann. 1067, 6 So. 806, 806 (1889) (it is established that appellant cannot complain of court's excusing juror).

12 . The ancestor of this Court, the Court of Appeals, had first decided that there would be reversal for every error without consideration of its effect. "It has been settled by this court that the rulings of the court in organizing a jury are not revisable unless they infringe the law or prejudice the accused. In this case we think the action of the court in setting aside the juror upon the challenge of the district attorney for cause was an infringement upon the law, though it may not have operated to the prejudice of the defendant; and for this error the judgment is reversed and the cause remanded." Wade v. State, 12 Tex.App. 358, 370 (1882) (citations omitted). This early doctrine was abandoned long ago. It is contrary to our policy that almost all errors are subject to harmless-error review. See Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App.1997).

13 . See footnote 11 and accompanying text.