Thomas L. George v. The State of Texas--Appeal from 186th Judicial District Court of Bexar County

No. 04-99-00461-CR

Thomas L. GEORGE,
Appellant
v.
The STATE of Texas,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 97CR2971
Honorable Sam Katz, Judge Presiding

Opinion by: Phil Hardberger, Chief Justice

Sitting: Phil Hardberger, Chief Justice

Alma L. L pez, Justice

Paul W. Green, Justice

Delivered and Filed: June 14, 2000

AFFIRMED

Thomas George pled guilty to murder and was sentenced by a jury to life imprisonment. In his sole point of error, George asserts that the trial court erred in granting the State's challenge for cause as to one veniremember. We overrule George's point of error and affirm the trial court's judgment.

A juror may be challenged for cause if the juror has a bias or prejudice in favor of or against the defendant. See Tex. Code Crim. Proc. Ann. art. 35.16(a)(9). (Vernon 1989). During individual voir dire, Leticia Couillard stated that she felt partial toward the defendant. She was concerned that her feeling would bias her against the State. She stated that her feeling would affect her to such a degree that she might not be fair. The State moved to strike Couillard for cause. Defense counsel attempted to rehabilitate Couillard. During defense counsel's questioning, Couillard stated that she felt sympathetic toward the defendant. Couillard stated that she would try her best to base her decision on the evidence in the case, but she could not guarantee that her feeling would go away. Upon further questioning, Couillard asserted that her feeling was not strong enough to prevent her from basing her decision on the evidence. The State reurged its challenge for cause, but defense counsel contended that Couillard had been rehabilitated and had stated that she would set aside any bias in reaching a verdict. The trial court deferred judgment until the completion of voir dire. After the completion of voir dire, the trial court granted the State's challenge for cause as to Couillard and stood in recess to allow the attorneys to make their peremptory strikes. When the proceedings were reconvened, the trial court informed the venire that the attorneys had exercised their peremptory strikes, and the jury was seated. Our record does not contain the jury lists indicating the number of peremptory strikes that were used.

In his brief, George contends that the erroneous granting of the State's challenge for cause in effect gave the State an additional peremptory challenge. George asserts that he was harmed by the trial court's action because it resulted in the skewing of the adversarial system in the State's favor.

Although George initially references the Texas Court of Criminal Appeals decision in Jones v. State, he fails to apply the harm analysis that was adopted in that decision. See Jones v. State, 982 S.W.2d 386 (Tex. Crim. App. 1998). In Jones, the Court of Criminal Appeals overruled the standard that was previously applied in analyzing harm resulting from the erroneous granting of a challenge for cause. See id. at 394. The Court noted that the existing standard was contrary to the policy that courts should follow: the liberal granting of challenges for cause. See id. The Court asserted, "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." See id. The Court then adopted a new harm standard to be applied when a juror is erroneously excused. Such error will only require reversal if the record shows that the error deprived the defendant of a lawfully constituted jury. See id.

In this case, the question of whether Couillard was biased or had been successfully rehabilitated was a close one. In Jones, the Court of Criminal Appeals encouraged trial courts to grant challenges for cause on close questions. See id. Even assuming the trial court erred in granting the challenge for cause, George failed to show that such error deprived him of a lawfully constituted jury. See id. George's point of error is overruled, and the trial court's judgment is affirmed.

PHIL HARDBERGER,

CHIEF JUSTICE

DO NOT PUBLISH