Opinion
No. 01-03-00651-CR
July 28, 2005.
On Appeal from the 263rd District Court, Harris County, Texas, Trial Court Cause No. 910961.
Panel consists of Justices TAFT, JENNINGS, and BLAND.
OPINION ON MOTION FOR REHEARING
Appellant, Charles Edward Jones, filed motions for rehearing and for en banc consideration. We granted the motion for rehearing to consider our decision in light of the standard of review established in the Texas Court of Criminal Appeal's opinion in Rich v. State, 160 S.W.3d 575 (Tex.Crim.App. 2005). We withdraw our opinion dated September 23, 2004, and issue this opinion in its stead. The disposition in the judgment remains unchanged.
A jury found Jones guilty of possession of between one and four grams of cocaine, found two prior felony enhancement paragraphs true, and assessed punishment at 35 years' confinement. We affirm.
Background
Lieutenant Stephen Casko of the Houston Police Department stopped a car because the driver had not maintained a single lane of traffic. Jones was a passenger in the car, and Jones's brother was the driver. Casko identified the car's occupants and checked their names for outstanding warrants. Because he did not receive a report indicating any outstanding warrants, Casko ended the stop and allowed the driver to continue driving.
Casko's computer system had been having problems that night. About an hour after he released Jones and his brother, Casko received a delayed notification that Jones had an outstanding warrant for his arrest. Casko went to Jones's house, found Jones in the front yard, and placed him under arrest. Casko searched Jones. During the search, Casko found a crack pipe in his left pocket and a pill bottle containing 24 rocks of crack cocaine in his right pocket.
Questioning of the Venire about Parole
Jones first contends that the trial court erred in refusing to allow his counsel to question the venire about parole. Specifically, defense counsel asked the following question:
If I'm correct on the law, you may receive a jury instruction from the court that you are not to discuss nor consider the matter of parole in any kind of sentence you assess. I would like to ask, is there a juror here who would be unable to follow that instruction.
The State objected to the question, the trial court sustained the objection, and defense counsel noted its exception to the ruling. A trial court abuses its discretion if it denies defense counsel the right to ask prospective jurors a proper question because such a denial prevents the defendant from intelligently exercising his peremptory strikes. Barajas v. State, 93 S.W.3d 36, 38-39 (Tex.Crim.App. 2002); Smith v. State, 703 S.W.2d 641, 643 (Tex.Crim.App. 1985). The State's appellate brief assumes that the trial court erred but contends that the error is not harmful. We agree.
A. Constitutional or Non-Constitutional Error
If a trial court abuses its discretion in refusing to allow a defendant to ask a proper question during voir dire, then we conduct a harm analysis under Texas Rule of Appellate Procedure 44.2. Gonzales v. State, 994 S.W.2d 170, 171 (Tex.Crim.App. 1999) (remanding cause for harm analysis based on trial court's impermissible exclusion of proper question about necessity defense during voir dire). Relying on Cain v. State, the Gonzales court discusses kinds of errors and their effect on appellate review. Structural constitutional errors are categorically immune from harm analysis. Id. (citing Cain v. State, 947 S.W.2d 262 (Tex.Crim.App. 1997)). Structural errors are those identified as such by the United States Supreme Court because they are "defect[s] affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself." Mendez v. State, 138 S.W.3d 334, 340 (Tex.Crim.App. 2004) (quoting Arizona v. Fulminante, 499 U.S. 279, 310, 111 S. Ct. 1246, 1265 (1991)). Constitutional errors likely interfere with a defendant's constitutional right, but a harm analysis is nonetheless appropriate. Id. (citing Cain, 947 S.W.2d at 264). If the appellate record reveals non-structural, constitutional error, the court of appeals must reverse the judgment or conviction unless it determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. Tex.R.App.P. 44.2(a). Otherwise, the court of appeals must disregard the error unless it affects the defendant's substantial rights. Tex.R.App.P. 44.2(b).
In Jones v. State, the Texas Court of Criminal Appeals applied these principles to error in the removal of a veniremember for cause, which is an issue related to, but distinct from, denial of a proper question during voir dire — the issue in the instant case. 982 S.W.2d 386, 390-92 (Tex.Crim.App. 1998). In Jones, the Texas Court of Criminal Appeals held that an improper removal of a juror for cause amounts to constitutional error "[o]nly in very limited circumstances." Id at 391. The court identified the following examples as errors of constitutional magnitude: (1) "when a juror is erroneously excused because of general opposition to the death penalty" and (2) when a juror is excluded for an "impermissible" reason "such as race, sex, or ethnicity." Id. (citing United States v. Prati, 861 F.2d 82, 87 (5th Cir. 1988)). Prati relied upon Ross v. Oklahoma, in which the Supreme Court held that a trial court's error in not granting a challenge for cause that forced the defendant to use a peremptory challenge to correct the court's mistake is not constitutional error. Prati, 861 F.2d at 87 (citing Ross v. Oklahoma, 487 U.S. 81, 108 S. Ct. 2273 (1988)).
Thus, as long as the jury that actually serves is impartial, the defendant's constitutional jury right has not been infringed. Id. This holding protects a defendant's core rights, while allowing flexibility and room for human error on the periphery of this right. The examples provided in Jones demonstrate the type of error that impedes jury impartiality, thereby violating a defendant's constitutional right to an impartial jury. 982 S.W.2d at 391.
Similarly, in Sanchez v. State, No. PD-1230-04, 2005 WL 1467884, at *3 (Tex.Crim.App. June 22, 2005), the Texas Court of Criminal Appeals determined that a trial court's error in allowing the State to improperly commit jurors to a set of facts is non-constitutional error, subject to a Rule 44.2(b) analysis. The court observed that:
reviewing courts should assess the potential harm of the State's improper commitment questioning by focusing upon whether a biased juror — one who had explicitly or implicitly promised to prejudge some aspect of the case because of the State's improper questioning — actually sat on the jury. The ultimate harm question is: was the defendant tried by an impartial jury, or, conversely, was the jury or any specific juror `poisoned' by the State's improper commitment questions on a legal issue or fact that was important to the determination of the verdict or sentence?
Id. Thus, the court applied Rule 44.2(b) to the issue of whether a biased juror actually sat on the jury.
Applying this reasoning to the instant case, Jones has failed to show constitutional error. No party discussed parole after voir dire, and the trial court gave the jury an instruction not to consider parole. Because a jury is presumed to follow the trial court's instructions, it is presumed that it did not consider parole. See Colburn v. State, 966 S.W.2d 511, 520 (Tex.Crim.App. 1998). Jones had an opportunity to question the veniremembers regarding the issues actually litigated and did not object to the venire's responses to those issues. At voir dire, the court entertained and granted nine challenges for cause from the defendant; Jones exercised all ten of his peremptory challenges. Nothing in the record suggests that the jury empaneled was less than impartial. In its brief, the State does not dispute that preventing counsel's question about parole was error in that it did not permit counsel to thoroughly interview the venire. See Barajas, 93 S.W.3d at 38. Precluding a question about parole, however, affects a peripheral right — to interview the venire — but not necessarily the core right that an impartial jury decide the issues that the evidence presents. To show constitutional error in the latter instance, the defendant must show that, as a result, a partial jury was empaneled. Ross, 487 U.S. at 88, 108 S. Ct. at 2278-79. We hold that the trial court's error in refusing to allow the proper question about parole is not a constitutional one in these circumstances because parole is not an issue that actually litigated — the jury heard no evidence about parole, nor was it required to make any finding about it.
Moreover, the trial court instructed the jury about parole, but only to remind it not to consider parole in reaching its decision about the evidence presented. In this sense, counsel's question about parole is a more specific commitment that the jury will consider only the evidence presented. As such, it presents less potential for a "partial" jury than one in which the venire has been improperly committed "to prejudge some aspect of the case." See Sanchez, 2005 WL 1467884, at *4.
Because no constitutional error occurred, we analyze the harm under Rule 44.2(b). See Jones, 982 S.W.2d at 391-92. Under Rule 44.2(b), we must disregard the error unless it affects the defendant's substantial rights. Tex.R.App.P. 44.2(b). A substantial right is affected if the error has a substantial and injurious effect or influence in determining the jury's verdict. Johnson v. State, 43 S.W.3d 1, 4 (Tex.Crim.App. 2001).
B. Harmless Error Analysis
In Rich, the Texas Court of Criminal Appeals announced the proper analysis for determining whether an error during general voir dire is harmful. In Rich, the trial judge denied the defendant's proper inquiry into the venire's perception of "reasonable doubt." 160 S.W.3d at 576. The court of appeals held that the trial court had erred in disallowing the inquiry but, applying the test for individual voir dire error in Anson v. State, concluded that the error was harmless. Rich v. State, 114 S.W.3d 54, 57 (Tex.App.-Fort Worth 2003), rev'd, 160 S.W.3d 575 (Tex.Crim.App. 2005) (citing Anson, 959 S.W.2d 203 (Tex.Crim.App. 1997). Upon review, the Court of Criminal Appeals held that Anson's harmless error analysis for individual voir dire does not apply to voir dire questions directed to the venire in a group setting, because under the latter circumstance, the error extends to the entire venire and cannot be remedied by requesting additional peremptory challenges. Rich, 160 S.W.3d at 577. The court held that the harmless error analysis that should have been used under 44.2(b) is the one employed upon review of a ruling involving the erroneous admission of evidence:
Under Anson, voir dire error is deemed harmful when (1) the defendant exhausts all his peremptory challenges; (2) the defendant requests additional peremptory challenges; (3) the trial court denies the defendant's request; and (4) the defendant identifies an objectionable person seated on the jury for whom he would have exercised a peremptory challenge. Anson v. State, 959 S.W.2d 203, 204 (Tex.Crim.App. 1997).
In the case of the erroneous admission of evidence, we have said that the appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case, the jury instructions, the State's theory and any defensive theories, closing arguments, voir dire, and whether the State emphasized the error. We believe these same general factors are relevant considerations in determining the harm from being denied a proper question to the venire.
Id. at 577-78 (footnote omitted). We thus analyze the error in this case under the standard of review pronounced in Rich. 1. Evidence admitted for the jury's consideration.
In Rich v. State, 160 S.W.3d 575, 576 (Tex.Crim.App. 2005), the Court of Criminal Appeals assumed, without deciding, that the error was non-constitutional and that Rule 44.2(b) applied, because the parties did not contend that the error should have been evaluated under Rule 44.2(a).
The jury did not hear evidence regarding the availability of parole during the guilt/innocence phase nor during the punishment phase. Including the evidence presented during both phases of trial, the jury considered a total of four witnesses, physical evidence of the confiscated drugs and drug paraphernalia, the warrant for Jones's arrest, and two penitentiary packets. Vernon Jones, Jones's younger brother, testified to the traffic stop but was not present at, and therefore did not comment about, Jones's arrest for drug possession. Lieutenant Casko testified regarding the events leading up to Jones's arrest, the circumstances of the arrest, the discovery of the crack cocaine, and the process followed to ensure the integrity of the physical evidence. Connie Dieringer, the chemist at the Houston Police Department crime lab who analyzed the evidence Lieutenant Casko seized from Jones, testified about the process she used to determine that the substance was crack cocaine. All of this evidence tends to show that Jones possessed approximately three grams of crack cocaine at the time of his arrest.
Jones also contested the indictment's two enhancement paragraphs. During the punishment phase of the trial, the State introduced two penitentiary packets to the jury through Harris County Sherriff's Department Deputy Joe Noguera's testimony. He identified Jones as the person described in the packets.
The evidence admitted for the jury's consideration did not involve parole. Thus, nothing in the evidence admitted for the jury's consideration favors a finding that the error affected Jones's substantial rights.
2. The nature of the evidence supporting the jury's verdict.
Jones does not contest the legal or factual sufficiency of the evidence supporting his conviction and punishment. The testimony of Deputy Noguera combined with the penitentiary packets that describe the time Jones spent in jail provides sufficient grounds for the jury to conclude that the two enhancement paragraphs were true. The trial court's instructions directed the jury to consider a punishment between 25 and 99 years. The jury assessed 35 years as punishment, toward the minimum of the statutory range. Overall, nothing about the nature of the evidence supporting the verdict favors a view that the voir dire error affected Jones's substantial rights.
3. The character of the error when considered in connection with other evidence in the case, the jury instructions, the State's theory and any defensive theories, closing arguments, voir dire, and whether the State emphasized the error.
The trial court's charge contained the following jury instruction regarding parole:
It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.
You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.
See Tex. Code Crim. Proc. Ann. art. 37.07 § 4(a) (Vernon Supp. 2004-2005).
The State contends that the trial court's instruction ameliorated any harm that arose from the improper exclusion of the defendant's question about parole. In response, Jones asks this court to follow Loredo v. State, in which the Corpus Christi Court of Appeals held that the trial court's error in precluding the defendant from questioning the venire about its ability to follow the parole law was reversible error. 59 S.W.3d 289, 291-93 (Tex.App.-Corpus Christi 2001, no pet.). In Loredo, the trial court instructed the jury on the pertinent parole law, using the same charge as the trial court used in this case. Id. at 292 (citing Tex. Code Crim. Proc. Ann. art. 37.07 § 4 (Vernon Supp. 2004-2005)). The Loredo court held that the right to ask questions of panel members is included in the right to counsel and is of constitutional magnitude. See id. at 292-93 (declining to decide whether failure to allow questions concerning parole is structural error). The court in Loredo thus applied the constitutional error analysis of Rule 44.2(a). We disagree with the Loredo court's view that erroneous exclusion of a voir dire inquiry about parole is tantamount to a deprivation of the constitutional right to an impartial jury, in a case in which the parties present no evidence about parole and the jurors are not asked to make any factual findings with regard to parole. The Court of Criminal Appeals decision in Sanchez and Jones indicate that constitutional error in similar circumstances is not automatic, and in this case, Jones does not provide any argument for the inclusion of inquiries about the venire's perception of parole to be counted among those of constitutional magnitude.
Moreover, we distinguish this court's opinion in Stringfellow v. State, upon which the Loredo court relied. See Loredo v. State, 59 S.W.3d 289, 292 (Tex.App.-Corpus Christi 2001, no pet.) (relying on Stringfellow v. State, 859 S.W.2d 451, 453 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd)). In Stringfellow, we held that the trial court's error in precluding the defendant from questioning the venire about their ability to follow the court's instructions on parole was reversible. Stringfellow, 859 S.W.2d at 453-54 ("The failure of the trial court to permit a proper question on an issue prevents the intelligent exercise of one's peremptory challenges and is an abuse of discretion, not subject to a harm analysis under Tex.R.App.P. 81(b)(2)."). We decided Stringfellow before the Court of Criminal Appeals issued its opinion in Gonzales, which held that a trial court's impermissible exclusion of a proper question during voir dire is subject to a harmless error analysis. See Gonzales v. State, 994 S.W.2d 170, 171 (Tex.Crim.App. 1999).
Rather, we presume the jury follows the trial court's instructions in the manner presented. Colburn, 966 S.W.2d at 520 (presuming jury followed trial court's supplemental jury instruction not to consider parole in reaching verdict after jury sent note to trial court asking about possibility of parole for life sentence in capital murder trial). The presumption is rebuttable, but Jones does not rebut the presumption by pointing to any evidence that the jury failed to follow the trial court's instructions regarding parole. See id. For example, he did not file a motion for new trial alleging juror misconduct, nor obtain a hearing to adduce facts not in the record. See id. In light of the trial court's proper instruction, we presume that the jury did not consider parole. See id. The trial court's instruction about parole thus favors a determination that the voir dire error was harmless under the Rich factors.
We hold that the trial court's error in precluding the defendant from questioning the venire about parole was a non-constitutional error, thus subject to a harm analysis under Rule 44.2(b). See Tex.R.App.P. 44.2(b). Applying the standard of review pronounced in Rich, we hold that the trial court's error in prohibiting defense counsel from asking the venire his proposed question regarding parole was harmless, given the facts of this case.
See Nathan v. State, 788 S.W.2d 942, 944 (Tex.App.-Fort Worth 1990, no pet.) (holding that trial court's instruction cured any error from venire member's improper comment about parole, absent showing that jury acted upon it). But see McGee v. State, 35 S.W.3d 294, 300 (Tex.App.-Texarkana 2001, pet. ref'd) ("[d]enial of proper questions during voir dire examination is always reversible error" because it is of constitutional magnitude.).
Motion to Suppress
Jones further contends that the trial court erred in overruling his motion to suppress the cocaine. He argues that the discovery of Jones's identity resulted from Casko's illegal detention during the initial traffic stop.
Courts do not consider the identity of a defendant to be a fruit of the arrest subject to suppression. Pichon v. State, 683 S.W.2d 422, 426 (Tex.Crim.App. 1984) (applying United States v. Crews, 445 U.S. 463, 100 S. Ct. 1244 (1980)); Blondett v. State, 921 S.W.2d 469, 473 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd). The police did not obtain any evidence from the traffic stop other than Jones's identity; thus, there were no fruits of the detention in this case. See Blondett, 921 S.W.2d at 473.
Moreover, upon identifying Jones and later detaining him in his front yard, Casko arrested Jones on a valid outstanding parole violation warrant. If an officer discovers a valid warrant for an individual's arrest and the officer arrests the individual under the authority of that warrant, any evidence found during a subsequent search incident to the arrest is admissible even if any illegality occurs in the initial detention. Johnson v. State, 496 S.W.2d 72, 74 (Tex.Crim.App. 1973); Sims v. State, 84 S.W.3d 805, 810 (Tex.App.-Houston [1st Dist.] 2002, no pet.). The police obtained the cocaine subsequent to and pursuant to a lawful arrest. See Sims, 84 S.W.3d at 810. Accordingly, the trial court did not err in overruling the motion to suppress the cocaine.
Conclusion
We affirm the judgment of the trial court. As we have withdrawn our opinion and issued a new opinion on rehearing, we deny the motion for en banc consideration as moot.
See Retzlaff v. Texas Dept. Of Criminal Justice, 135 S.W.3d 731, 734 n. 1 (Tex.App.-Houston [1st Dist.] 2003, no pet.); Hartrick v. Great Am. Lloyds Ins. Co., 62 S.W.3d 270, 272 (Tex.App.-Houston [1st Dist.] 2001, no pet.).