Exclusion of a Prospective Juror from Jury Duty for No Good Reason In Texas
In Jones v. State, the court of criminal appeals held that mistaken application of Code of Criminal Procedure article 35.16 is not of constitutional dimension. 982 S.W.2d 386, 391 (Tex. Crim. App. 1998), cert. denied, 120 S. Ct. 444, 145 L. Ed. 2d 362 (1999).
In Jones, the court of criminal appeals rejected its prior rule that a defendant could show harm in the erroneous exclusion of a prospective juror for cause by showing that the State had exercised all of its peremptory challenges on other venirepersons. Jones, 982 S.W.2d at 393-94.
Instead, absent a showing that the defendant was deprived of a lawfully constituted jury, the appellate court will not reverse. Jones, 982 S.W.2d at 394.
In the course of rejecting the old rule, the court observed, "The defendant's rights go to those who serve, not to those who are excused." Jones, 982 S.W.2d at 393.
The court also stated that the old rule was contrary to the policy of liberally granting challenges for cause. Jones, 982 S.W.2d at 394.
The court observed, "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." Id. at 393.
Accordingly, the court reinstated the 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." Jones, 982 S.W.2d at 394.
The court stated, "The error in this case was a mistaken application of Article 35.16(b)(3)." Jones v. State, 982 S.W.2d 386, 391 (Tex. Crim. App. 1998), cert. denied, 145 L. Ed. 2d 362, 120 S. Ct. 444 (1999).
It would appear, however, that the Jones trial court actually excluded the prospective juror at issue under Code of Criminal Procedure article 35.16(a)(9), and that the State provided article 35.16(b)(3), as an alternative justification on appeal. See Jones, 982 S.W.2d at 389 & n.4.
Article 35.16(b)(3) provides:
"A challenge for cause may be made by the State for any of the following reasons . . . that the prospective juror has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment." TEX. CODE CRIM. P. ANN. art. 35.16(b)(3) (Vernon Supp. 2000).