Neel v. State

658 S.W.2d 856, 1983 Tex. App. LEXIS 5141

• Court: Court of Appeals of Texas
• Decided: September 26, 1983
• Docket: No. 05-82-00193-CR
• Status: Published

Opinions

WHITHAM, Justice.

On rehearing and on the court’s own motion the State’s motion for rehearing is granted and our former opinion is withdrawn. Following resubmission the following opinion is substituted as the opinion of the court.

Appellant appeals from a conviction by the jury for driving a motor vehicle while intoxicated. The court assessed punishment at two years confinement in the Dallas County jail and a $50.00 fine. In his sole ground of error appellant contends that “the trial court committed reversible error in the excusing of a venire person sua sponte since said juror was not absolutely disqualified from serving on the jury.” We agree. Consequently, we reverse and remand.

During jury selection the prosecutor asked a potential juror if he could be fair and impartial and he replied he could not. At bench conference the potential juror again stated he could not be fair and impartial. The trial judge, in his qualification to the bill of exception, then tells us:

Neither the State of Texas nor the Defendant submitted juror number eight, Kenneth Leiter. The Court excused the juror on its own motion since the juror stated that he had worked with the District Attorney’s office and the Police Department and had followed “driving while intoxicated” cases through the Courts and consequently could not be fair to the Defendant. The Court then asked the Defense counsel if he was going to submit the juror and the Defense Counsel stated that he was not. At that time the Court submitted the juror. The State of Texas did not submit the juror.

The rule is well settled that a trial judge should not on his own motion excuse a prospective juror for cause unless he is absolutely disqualified from serving on a jury. Martinez v. State, 621 S.W.2d 797, 798 (Tex.Cr.App.1981) (en banc), (citing Sanne v. State, 609 S.W.2d 762, 770 (Tex.Cr.App.1980) (en banc); Bodde v. State, 568 S.W.2d 344, 349 (Tex.Cr.App.1978), cert. denied, 440 U.S. 968, 99 S.Ct. 1520, 59 L.Ed.2d 784 (1979); Moore v. State, 542 S.W.2d 664 (Tex.Cr.App.1976), cert. denied, 431 U.S. 949, 97 S.Ct. 2666, 53 L.Ed.2d 266 (1977); Pearce v. State, 513 S.W.2d 539 (Tex.Cr.App.1974); and Henriksen v. State, 500 S.W.2d 491 (Tex.Cr.App.1973)); Ernster v. State, 165 Tex.Cr.R. 422, 308 S.W.2d 33 (1957). Tex.Code Crim.Proc.Ann. art. 35.19 (Vernon Supp. 1982-1983), addressing absolute disqualification, provides that: “No juror shall be impaneled when it appears that he is subject to the second, third or fourth cause of challenge in Article 35.16, though both parties may consent.”¹ Lack of fairness and impartiality is not listed as one of the causes of challenge under which a potential juror is absolutely disqualified. Furthermore, there was no evidence in the bill that the juror was subject to absolute disqualification under the second, third or fourth causes of challenge as set out in Tex.Code Crim.Proc.Ann. art. 35.16. We conclude that the trial judge erred in excusing the juror on his own motion. Next, we consider whether the error was harmful.

A test derived to show harm for the erroneous exclusion of a qualified juror is set forth in Payton v. State, 572 S.W.2d 677, 680 (Tex.Cr.App.1978):

Harm may be shown in the erroneous exclusion of a qualified juror by showing the State exhausted its peremptory challenges.

See also, Martinez v. State, 621 S.W.2d at 799. In the present case the prosecutor testified that the State used all of its peremptory challenges against other jurors. We therefore conclude that harm has been shown and that appellant, as he argues in his brief, “should be allowed to determine which jurors to submit for cause in his behalf and be allowed to make his own determination as to the import of the jur- or’s statements.” Accordingly, we sustain appellant’s sole ground of error.

Reversed and remanded.

1 .The second, third and fourth causes of challenge contained in Tex.Code Crim.Proc.Ann. art. 35.16 (Vernon Supp. 1982-1983) are:

2. That he has been convicted of theft or any felony;

3. That he is under indictment or other legal accusation for theft or any felony;

4. That he is insane or has such defect in the organs of feeling or hearing, or such bodily or mental defect or disease as to render him unfit for jury service, or that he is legally blind and either the court or the state in its discretion or the defendant or the prospective juror in his discretion is not satisfied that he is fit for jury service in that particular case.