             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS

                                        NO. PD-0798-08

                        ANNE ELIZABETH MURPHY, Appellant

                                                 v.

                                   THE STATE OF TEXAS

         ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE FIRST COURT OF APPEALS
                          HARRIS COUNTY

            J OHNSON, J., delivered the opinion of the Court in which K ELLER, P.J.,
and K EASLER, H ERVEY, and C OCHRAN, JJ., joined. W OMACK, J., filed a dissenting
opinion in which M EYERS, P RICE, and H OLCOMB, JJ., joined.

                                          OPINION

       A jury convicted appellant of capital murder in the course of committing or attempting to

commit robbery. Because the state did not seek the death penalty, the trial court assessed a sentence

of life imprisonment without parole. TEX . PENAL CODE § 12.31(a). The First Court of Appeals

affirmed the trial court’s judgment and sentence. Murphy v. State, No. 01-07-00174-CR, 2008 Tex.

App. LEXIS 2568 (Tex. App. – Houston [1st Dist.], delivered April 10, 2008)(not designated for

publication). We granted appellant’s petition for discretionary review.

                                           Direct appeal
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         On direct appeal, appellant’s points of error included claims asserting constitutional and

statutory violations by the trial court: not informing the prospective jurors that she would be

sentenced to life imprisonment without parole if found guilty of capital murder; and not allowing her

to so inform or to question venire members on that subject. The court of appeals held that, because

appellant failed to show that she was prevented from asking a particular proper question, she failed

to preserve for review her complaints that she had been denied her constitutional right to effective

assistance of counsel. Murphy v. State, supra at * 27. The court of appeals also held that the failure

of the trial court to inform the venire that appellant would receive a mandatory life sentence if

convicted of capital murder was non-constitutional error and was harmless because “nothing in the

record indicates that such failure to inform the venire of this information denied appellant’s right to

a fair and impartial jury,” thus appellant’s substantial rights were not affected by the error. Id. at **

28-33.

                                  Appellant’s Grounds for Review

         We granted appellant’s three grounds for review. Those grounds assert:

         1) In this non-death capital murder case[,] appellant’s constitutional claim that she
         was denied the effective assistance of counsel and due process of law was preserved
         for appellate review when the trial court refused to advise the venire that [appellant]
         would be sentenced without parole [sic] if convicted of capital murder when
         requested by trial counsel[,] as mandated by TEX . PEN . CODE ANN . § 12.31(b) and
         then prohibited counsel from doing so even though he failed to provide the court with
         a particularized question on the issue pursuant to Sells v. State, 121 S.W.3d 748 (Tex.
         Crim. App. 2003).

         2) Because the trial court declined to advise the appellant’s venire that she would be
         sentenced to life without parole as mandated by TEX . PEN . CODE ANN . § 12.31(b) and
         then prohibited her attorney from doing so during voir dire, [appellant] was denied
         the effective assistance of counsel and due process of law on this issue during voir
         dire[,] and the harm she suffered should be assessed under TEX . R. APP . P. 44.2(a).

         3) Because the purpose of TEX . PEN . CODE ANN . § 12.31(b) is its own clearly stated
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        mandate that the venire in a non-death capital murder case shall know the guilty
        defendant will receive a sentence of life without parole, any review of the harm
        caused by the trial court’s multiple failures to so inform the appellant’s jury should
        be conducted in light of that stated purpose under TEX . R. APP . P. 44.2(b).

                                                      Background

        TEX . PEN . CODE ANN . § 12.31(b) includes a provision that “[i]n a capital felony trial in which

the state does not seek the death penalty, prospective jurors shall be informed that the state is not

seeking the death penalty and that a sentence of life imprisonment without parole is mandatory on

conviction of the capital felony.”1 The record reflects that, at the beginning of voir dire, and outside

the presence of the venire, the trial court informed the parties of its position on revealing the

automatic sentence of life without parole to the venire.

                 I’m going to go on the record outside the presence of the jury. Before we
        begin jury selection, I have discussed with each side the issue regarding punishment
        in this case and discussing it on voir dire. This is a capital murder where the State
        is not seeking the death penalty, so in the event Ms. Murphy is convicted of capital
        murder, the sentence is automatic life without parole and I would be doing the
        sentencing, so it is my position that I’m going to tell this panel, if they convict her of
        capital murder, punishment is not an issue for them, it’s just for me. And I don’t
        intend to tell the panel and I don’t want either side to tell the panel that it would be
        life without parole.

                I understand that there are – there will probably be lessers raised in this case
        and, of course, both sides have to qualify the panel on the punishment range on those
        lessers; but as far as the non-death capital punishment range, I would instruct the
        lawyers not to go into what that means, life without parole.

        One of appellant’s attorneys sought clarification of whether the trial court meant not to



        1
            Section 12.31. Capital Felony
                   (a) . . .
                   (b) . . . In a capital felony trial in which the state does not seek the death penalty, prospective jurors
                   shall be informed that the state is not seeking the death penalty and that a sentence of life
                   imprisonment without parole is mandatory on conviction of the capital felony.

        (Emphasis added.)
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mention the punishment for a conviction for capital murder, i.e. “not to define life without parole,

but not to say it at all?” The trial court responded,

        Right. That’s what I’m – yes, because I don’t think it’s an issue that they need to
        know about, or it’s not for them to decide. So if they convict her of capital murder,
        then they need to know the trial is over for them at that point and that the court will
        be doing the sentencing. If they convict her of a lesser, then they will be doing the
        punishment.

        One of appellant’s attorneys objected and stated, “We think the jury panel should be entitled

to know. Since the State is not seeking the death penalty and that it is an automatic punishment

assessed by the court at that point in time, we think the jury panel should be entitled to know that it

is an automatic life sentence.” He further asserted that whether it is defined as life without parole

or not, “they should at least be told that the only punishment that the defendant can receive at that

point is life, so we would object and make a request that we be allowed to go into that.”

        The prosecutor argued that, because the automatic life sentence was not a matter for venire

members’ consideration, there was no need to question them about it, thus “[t]here is no need to

explore their thoughts or their feelings about the automatic sentence, just like any other case when

the court is doing the sentencing.” After commenting about questioning and qualifying prospective

jurors to consider the full range of punishment on lesser-included offenses, the prosecutor added,

“It’s very clear that any type of potential punishment shouldn’t enter into their deliberations on guilt

or innocence. For that reason, I think the court’s decision is the appropriate one.”

        The trial court stated that it was going to stand by its ruling and that it was going to instruct

the jury that the “death penalty is not an option in this case. If you convict her of capital, the court

will be doing the sentencing.”

        Appellant asserts that she was thereby denied her right to question the prospective jurors so
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that she might intelligently exercise her peremptory challenges as guaranteed by the Texas and

United States constitutions. She acknowledges that trial counsel did not advise the court of a

particular question that she wished to propound on that issue, but asserts that his request that he “be

allowed to go into that” was sufficient to preserve error, and the trial court’s willingness to “stand

by” its order confirms this view. Appellant also argues that the error was preserved and is of

constitutional dimension: the trial court’s ban deprived her of due process of law, effective assistance

of counsel, and her “right to be heard.” She also suggests that, because the trial court’s error is of

constitutional dimension, such error should be examined under TEX . R. APP . P. 44.2(a) and urges this

Court to determine whether such constitutional error is of “structural” or “systemic” proportions and

to assess harm accordingly.

       The state notes that appellant’s trial attorney did not object to the trial court’s actions on

constitutional grounds. The state argues that these claims, raised for the first time on appeal, have

therefore been waived for purposes of appeal. It also asserts that there is nothing in the language of

TEX . PEN . CODE ANN . § 12.31(b) that requires a trial court to permit a trial attorney to question

prospective jurors about the fact that a life sentence without the possibility of parole would be

assessed if appellant was found guilty of capital murder. It maintains that appellant was therefore

not denied her right to ask the prospective jurors a proper question. The state argues that any error

on the part of the trial court in failing to comply with § 12.31(b) constituted statutory error and was

harmless under TEX . R. APP . P. 44.2(b).

                                               Analysis

       Appellant asserts that the trial court initiated the error complained of by informing counsel,

despite the clear mandate of TEX . PEN . CODE ANN . § 12.31(b), that it would not advise the venire
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that appellant would receive an automatic sentence of life without parole if convicted of capital

murder and also instructed counsel not to do so during voir dire. Ground one of appellant’s petition

asserts that appellant’s constitutional claims of lack of due process and ineffective assistance of

counsel were preserved for appellate review and challenges the court of appeals’s determination that

her constitutional complaints were not preserved. Appellant acknowledges that “counsel did not

specifically object that the trial court’s prohibitions violated [her] right to effective counsel and right

to ask proper questions to the venire under our state and federal constitutions . . ..” (Appellant’s

Brief, p. 11.) However, she contends that the trial court’s “intervention and order explicitly

prohibited h[er] from doing so” and asserts that her “grounds for review were apparent from the

context of the pre-voir dire exchange between the court and counsel.” (Appellant’s Brief, p. 11.)

        After reviewing the record, we do not find any specific objection at trial claiming a due-

process violation resulting from the trial court’s actions. The record does reflect that the trial court

explicitly announced that it would not inform the prospective jurors pursuant to that provision,

despite the mandatory language of the statute.

        As a prerequisite for presenting a complaint for appellate review, TEX . R. APP . P. 33.1(a)

requires a timely objection with sufficient specificity to make the trial court aware of the complaint,

unless the specific grounds were apparent from the context. Appellant timely objected to the failure

of the trial court to conform to the mandatory language of § 12.31(b). “As it did on direct appeal,

the State recognizes that, by its wording, Section 12.31(b) is mandatory rather than discretionary.

. . . Thus, the trial court erred by failing to inform the prospective jurors that a guilty verdict on

capital murder would result in a mandatory sentence of life imprisonment without parole.” (State’s

Brief, p. 19.)
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        This is not the common complaint about voir dire–that the defendant wished to investigate

a general topic and the trial court refused to allow questioning on that topic. In this case, the statute

required the trial court to give to the jury one specific piece of information–that the sentence upon

conviction of capital murder would be life without parole–regardless of whether the defense requests

it. The trial court refused to give the mandatory instruction, despite an explicit request by the

defendant. However, that request and subsequent objection were made only as to the statutory

violation. Appellant made no objection based on the constitutional bases she now asserts. We hold

that the error was preserved as to the statutory complaints, but not preserved as to the constitutional

claims. Because appellant made no objection based upon the constitutional bases she now asserts

in ground one, we overrule ground one.

        In her second ground for review, appellant urges this Court to assess harm under the

constitutional standard set out in Rule 44.2(a). Because we have held that error was not preserved

as to appellant’s constitutional claims, appellant’s claim that the harm from the error should be

assessed under Rule 44.2(a)’s provisions for constitutional error is moot. Accordingly, we dismiss

ground two.

        Appellant’s third ground for review contends that the harm caused by the trial court’s error

should be reviewed under the provisions of Rule 44.2(b) and “in light of [the] stated purpose” of that

rule. Pursuant to Rule 44.2(b), we must disregard all non-constitutional errors that do not affect an

appellant’s substantial rights. Rich v. State, 160 S.W.3d 575, 577 (Tex. Crim. App. 2005). “A

substantial right is affected ‘when the error has a substantial and injurious effect or influence in

determining the jury’s verdict.’” Id., quoting Russell v. State, 155 S.W.3d 176, 179 (Tex. Crim. App.

2005). The court of appeals applied those standards to its harm analysis pursuant to Rule 44.2(b).
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Murphy v. State, supra at ** 28-33.

         While appellant’s third ground for review asserts that harm from the trial court’s error should

be evaluated under Rule 44.2(b), her argument asserts that the trial court’s actions constitute

“structural” error that is immune to harm analysis or, alternatively, is “systemic.” She maintains that

it is impossible to determine with any certainty whether she was harmed by the trial court’s error,

and because meaningful harm analysis is not possible, it cannot be said with fair assurance that the

trial court’s error did not affect a substantial right.

         In this case, the right protected by § 12.31(b) is the right to have the prospective jurors

informed that the state is not seeking the death penalty and that a sentence of life imprisonment

without parole is mandatory upon conviction of the capital offense. Although the jury would not be

involved in assessing that mandatory sentence, the legislature nevertheless saw fit to require the trial

court to provide that information to the prospective jurors. The trial court’s error abrogated that

statutory right.

         Pursuant to the language of Rule 44.2(b), we disregard all non-constitutional error that does

not affect appellant’s substantial rights. “We have construed this to mean that an error is reversible

only when it has a substantial and injurious effect or influence in determining the jury’s verdict.”

Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008), citing King v. State, 953 S.W.2d 266,

271 (Tex. Crim. App. 1997). We have also held that the substantial right at issue in voir dire is the

ability to empanel only those jurors who are qualified to serve. If an appellant does not present

record evidence that demonstrates that the trial court’s error deprived her of a jury comprised of

legally qualified jurors, she suffered no harm. Gray v. State, 233 S.W.3d 295, 301 (Tex. Crim. App.

2007).
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        Appellant asserts that the omitted instruction was a mandatory part of the trial and that its

absence affected how the venire perceived the case and the jury decided it. She also notes that seven

members of the venire indicated that they could not be fair and impartial because they were excluded

from the consideration of punishment for reasons that were never made known to them. Appellant

suggests that, had § 12.31(b) been followed, all members of her venire “would have known the

consequences of a guilty verdict and been able to inform the court whether that would affect their

ability to be fair and impartial jurors.” (Appellant’s Brief, p. 16.) She also suggests that this

information would have “heightened jurors’ sense of what proof beyond a reasonable doubt meant

because of the severity of the sentence that followed a finding of guilt.” (Appellant’s Brief, p. 16.)

        The state directs our attention to several general factors, set out in Rich v. State, 160 S.W.3d

at 577-78, as relevant considerations in determining harm from being barred from asking a proper

question of a venire. Those factors were described in a case involving the erroneous admission of

evidence and were applied to the erroneous denial of a proper question in voir dire. Id. However,

in this case, the trial court erred in not providing to the prospective jurors the information mandated

by § 12.31(b). Under these circumstances, in which the error does not involve evidentiary or legal

issues at trial, the Rich factors do not apply to the evaluation of harm.

        In the instant case, appellant has failed to show that she was deprived of a jury that was

comprised of legally qualified jurors. The failure to provide information to which the jury panel was

entitled by statute did not affect the legal qualifications of any of the venire members. We therefore

conclude that the trial court’s error did not affect appellant’s substantial rights, and pursuant to Rule

44.2(b), it must be disregarded. We overrule appellant’s third ground for review.

        We affirm the judgment of the court of appeals.


Delivered: October 21, 2009
Do not publish
