Arnold Eugene Neal v. The State of Texas--Appeal from 263rd District Court of Harris County

Affirmed and Memorandum Opinion filed February 6, 2007.

In The

Fourteenth Court of Appeals

_______________

NO. 14-06-00084-CR

NO. 14-06-00085-CR

ARNOLD EUGENE NEAL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 263rd District Court

Harris County, Texas

Trial Court Cause Nos. 906,184 & 1037749

M E M O R A N D U M O P I N I O N

Appellant, Arnold Eugene Neal, appeals his conviction for two counts of indecency with a child on the sole ground that the trial court erred by misstating the law regarding juror qualifications during voir dire. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.

During voir dire, when explaining the qualifications for serving on a jury to the vernirepersons, the trial court stated in pertinent part as follows:

Misdemeanors. You=ve not been convicted of any misdemeanor involving moral turpitude, which is really prostitution and theft. You=re not awaiting trial for a misdemeanor moral turpitude, nor are you on probation for moral turpitude misdemeanor.

Because if you are any of those things, you see, it could prejudice you in your ability to be fair and impartial.

(emphasis added).

Citing Code of Criminal Procedure articles 35.16 and 35.19 and Government Code section 62.102, appellant asserts the only misdemeanor conviction that disqualifies a potential juror is one for misdemeanor theft. See Tex. Code Crim. Proc. Ann. art. 35.16(a)(2),(3) (Vernon 2006) (providing that the State or defendant may challenge for cause a prospective juror on the grounds he has been convicted of, or is under indictment or other legal accusation, for misdemeanor theft or a felony); Tex. Code Crim. Proc. Ann. art. 35.19 (Vernon 2006) (stating that no juror shall be impaneled when it appears he is subject to a challenge for cause on the grounds set forth in article 35.16(a)(2),(3), though both parties may consent); Tex. Gov=t Code Ann. ' 62.102(7),(8) (Vernon Supp. 2006) (providing, in relevant part, that a person is disqualified to serve as a petit juror who has been convicted of, or is under indictment or other legal accusation for, misdemeanor theft or a felony).

Thus, appellant complains the trial court misstated the law by erroneously expanding the type of misdemeanor conviction that disqualifies a potential juror to include any misdemeanor involving moral turpitude, including prostitution. However, any misstatement of the law was not reversible error. See Tex. R. App. P. 44.2(b) (providing any error that does not affect substantial rights must be disregarded). As far as the record reflects, no venireperson claimed to be disqualified based on a conviction, or pending accusation or indictment, for a misdemeanor involving moral turpitude, including prostitution, and the trial court did not excuse any venireperson on those grounds.

Moreover, even if the trial court did excuse a venireperson on those grounds, there was no reversible error. A defendant has no right to have any particular individual serve on the jury. Jones v. State, 982 S.W.2d 386, 393 (Tex. Crim. App. 1998). The defendant=s only substantial right is that the jurors who do serve be qualified. Id. The erroneous excusing of a venireperson for cause requires reversal only if the record shows the error deprived the defendant of a lawfully constituted jury; i.e., a jury composed of qualified persons. See Ford v. State, 73 S.W.3d 923, 925 (Tex. Crim. App. 2002); Jones, 982 S.W.2d at 394. We presume that jurors were qualified absent some indication in the record to the contrary. Ford, 73 S.W.3d at 925. Here, the record does not show that appellant was deprived of a lawfully constituted jury by any erroneous excusing of a venireperson.

Accordingly, we overrule appellant=s sole issue and affirm the trial court=s judgment.

/s/ Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed February 6, 2007.

Panel consists of Justices Frost, Seymore, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).