









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. 1481-00


B. J. FRANKLIN, Appellant

v.


THE STATE OF TEXAS




ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE SIXTH COURT OF APPEALS

BOWIE COUNTY



 Keasler, J., delivered the opinion of the Court, in which Price, Johnson, Hervey,
and Holcomb, JJ., joined.  Keller, P.J., filed a dissenting opinion.  Cochran, J., filed a
dissenting opinion in which Meyers, J., joined.  Womack, J., concurred without opinion.

O P I N I O N


	We granted review in this case to determine whether the Court of Appeals erred in
applying a constitutional harm analysis to the trial court's denial of a mistrial after one of the
jurors revealed during trial that she knew the victim.  We conclude that it did not. 
Facts
	During voir dire at B. J. Franklin's trial, defense counsel asked the veniremembers if
they knew any of the participants in the trial.  None of the jurors indicated that they knew the
participants.  But when the State called its first witness--the victim--to the stand, Juror
Spradlin notified the judge that she knew the victim because Spradlin was the assistant leader
of the victim's girl scout troop and that her daughter was also in that troop.  Spradlin told the
judge that she had not recognized the victim's name during voir dire but recognized the victim
when she saw her at trial.  The trial judge asked Spradlin if she could listen to the evidence in
the case and base her judgment just on what she heard from the stand.  Spradlin stated that she
could.  
	Defense counsel moved for a mistrial, stating that if he had known about the
relationship between Spradlin and the victim, he would have exercised a peremptory challenge
against Spradlin.  Defense counsel also requested to ask Spradlin some additional questions
about her relationship with the victim. When the trial judge refused to allow additional
questioning, defense counsel objected that his client's due process rights were being violated. 
He stated that he would have asked Spradlin about her relationship with the victim, how long
the relationship lasted, whether or not she could set aside that relationship in deciding the case,
and whether she would give more or less credence to the victim's testimony and truthfulness
due to the relationship.  Defense counsel stated that the judge was preventing him from
developing any testimony regarding potential biases.  The judge overruled defense counsel's
objections and denied the motion for mistrial.Procedural History
	Franklin was convicted of aggravated sexual assault of a child, and the jury sentenced
him to life in prison.  Franklin appealed, arguing that the trial court erred in denying the motion
for mistrial "based upon a juror's failure to accurately answer questions during voir dire and
also because he was unable to intelligently exercise his peremptory strikes as a result of that
failure." (1)  The Sixth Court of Appeals affirmed his conviction, finding that although the trial
court erred in refusing to permit further questioning of the juror, Franklin failed to preserve
error because he did not request to make a bill of exceptions "that would have explored the
relationship between the juror and the victim, thus providing information from which [the
Court of Appeals] could assess whether the information was truly material." (2) 
	We granted Franklin's petition for discretionary review, which claimed along with three
other grounds for review that the information Spradlin withheld was material and that he had
preserved the issue for review.  We concluded that Franklin had preserved error and that the
information withheld by Spradlin was material. (3)  We remanded the cause to the Court of
Appeals to conduct a harm analysis. (4) 
	On remand, the Court of Appeals reversed Franklin's  conviction.  It determined that the
error was of a constitutional dimension subject to harm analysis under Rule 44.2(a). (5)  The
Court of Appeals found that Juror Spradlin's failure to accurately answer counsel's voir dire
questions prevented him from intelligently exercising peremptory strikes or from requesting
a challenge for cause. (6)  It reasoned that "a defendant's constitutional right to counsel requires
that counsel be permitted to question the jury panel in order to intelligently exercise
peremptory challenges," so Spradlin's withholding of material information was of
constitutional dimension.  And because the trial judge refused to admit information that would
have permitted the Court of Appeals to "apply a harm analysis to the juror's failure to answer
counsel's voir dire questions accurately," it could not determine beyond a reasonable doubt
that the error did not contribute to Franklin's conviction. (7) 
	We then granted the State's petition for discretionary review, which contends that the
Court of Appeals erred in analyzing the improper limitation of defense questioning for harm
under Rule 44.2(a) of the Texas Rules of Appellate Procedure.  The State also argues that the
Court of Appeals erred in holding that the improper limitation of defense counsel questioning
in this case was harmful where the record does not show that the jury was not fair and impartial. 
Analysis
	The State characterizes the error at issue here as follows: "Is there a constitutional right
for counsel to ask questions that are relevant only the to the exercise of peremptory
challenges?"  The Court of Appeals rejected the characterization of the issue in those terms, (8)
as do we.  The error at issue here is the trial judge's denial of a mistrial when, after the trial
began, Juror Spradlin revealed that she knew the victim.  The trial judge's refusal to allow
defense counsel to ask Juror Spradlin questions about her relationship with the victim is
considered in the harm analysis, but it is not primarily the error in question.  Because the jury
had been sworn and the trial had begun, the appellant's only remedy was a mistrial; defense
counsel could not have moved to challenge the juror for cause or to peremptorily strike the
juror.  So, the issue here is what standard of harm should be applied to the trial judge's denial
of a mistrial based on the juror's withholding of material information.
	Under Texas Rule of Appellate Procedure 44.2, the standard of review for errors of a
constitutional dimension differs from the standard for other errors. (9)  The rule provides  that:
	(a) Constitutional error.	If the record in a criminal case reveals
constitutional error that is subject to harmless
error review, the court of appeals must reverse a
judgment of conviction or punishment unless the
court determines beyond a reasonable doubt that
the error did not contribute to the conviction or
punishment.
 
	(b) Other errors.		Any other error, defect, irregularity, or variance
that does not affect substantial rights must be
disregarded. (10)
	 Was a constitutional right affected by the juror's withholding of material information
during voir dire and the judge's subsequent denial of a mistrial, compounded by the trial court's
refusal to allow defense counsel to ask questions to develop a record of actual bias or
prejudice?  We have said before that "[c]onstitutional provisions bear on the selection of a jury
for the trial of a criminal case." (11)  And while not every error in the selection of a jury violates
the constitutional right of a trial by an impartial jury, (12) we conclude that the error in this case
did violate that right.
	The Sixth Amendment guarantees the right to a trial before an impartial jury. (13)  Part of
the constitutional guarantee of the right to an impartial jury includes adequate voir dire to
identify unqualified jurors. (14)  And we have consistently held that essential to the Sixth
Amendment guarantees of the assistance of counsel and trial before an impartial jury "is the
right to question veniremembers in order to intelligently exercise peremptory challenges and
challenges for cause." (15)  In Salazar v.  State, we held that "where a juror withholds material
information during the voir dire process, the parties are denied the opportunity to exercise
their challenges, thus hampering their selection of a disinterested and impartial jury." (16)  We
also found "[t]hat a juror will state that the fact that he withheld information will not affect his
verdict is not dispositive of the issue where the information is material and therefore likely
to affect the juror's verdict." (17)  The fact that the juror did not intend to intentionally withhold
information "is largely irrelevant when considering the materiality of information withheld." (18)
	Here, Juror Spradlin withheld material information--that she was the victim's assistant
Girl Scout troop leader, and that her daughter was also in the same Girl Scout troop as the
victim--that prevented Franklin not only from intelligently exercising his peremptory
challenges but from exercising a challenge for cause as well.  And, under Salazar, Spradlin's
statement to the trial judge that she could consider the evidence and base her decision on the
evidence does not mean that Franklin was not deprived of an impartial jury. (19)  The trial judge,
informed of the relationship between Spradlin and the victim, refused to grant a mistrial and
denied Franklin the opportunity to discover whether the relationship affected Franklin's right
to a trial by an impartial jury. 
	And the error did not end there.  The trial judge also deprived Franklin of the ability to
develop evidence of bias or prejudice on the record.  In this case, defense counsel told the
court: 
Had I been allowed to ask questions, I would have asked questions concerning
the nature of the relationship with [the victim], how long it had lasted, whether
or not she could set aside any of her relationship with [the victim], in sitting in
judgment in this particular case, or whether she would tend to give more
credence or less credence to [the victim]'s testimony and truthfulness due to
that relationship.

Counsel explained that these questions were relevant to Spradlin's "potential biases" and would
have uncovered information relevant to a challenge for cause.  But the trial court refused to
allow counsel to ask these questions, which we interpreted as "a direct order not to ask the
questions." (20)  The trial judge's refusal to allow defense counsel to ask Juror Spradlin questions
regarding the nature and extent of the relationship deprived Franklin of the ability to show
actual bias or prejudice.  We hesitate to hold Franklin to a burden of showing actual bias or
prejudice when the trial judge denied him the ability to develop evidence of actual bias or
prejudice on the record.  We believe that all of these factors together--Juror Spradlin's failure
to reveal her relationship to the victim, the judge's denial of a mistrial, and the trial judge's
refusal to allow defense counsel to question Spradlin about her relationship to the victim--
affected Franklin's right to a trial by an impartial jury.  So, we conclude that the Court of
Appeals properly applied the constitutional standard of harm under Rule 44.2(a).
	Judge Cochran's dissent argues that we should apply the federal standard that Franklin
must show that Juror Spradlin had actual bias.  Under the federal standard, the defendant must
not only show that the juror failed to provide an honest answer to a material question during
voir dire but also that a correct response would have provided the basis for a challenge for
cause. (21)  What Judge Cochran advocates is not and has never been the standard in Texas.  Under
Texas law, the defendant must show that the juror withheld material information during voir
dire, and the information is withheld despite due diligence exercised by the defendant. (22)  So,
"[i]t is not necessary that the concealed information show actual bias; just that it has a tendency
to show bias." (23)  The fact that Spradlin had a relationship with the victim, one that many people
would consider almost a parental role, certainly has a tendency to show bias.
	The State argues that, by analyzing the error for harm under Rule 44.2(a), the Court of
Appeals has issued an opinion that conflicts with our reasoning in Jones v. State. (24)  In Jones,
we found that an error in granting the State's challenge for cause was not of a constitutional
dimension. (25)  We noted that "while it is true, as appellant argues, that the Constitution
guarantees to an accused the right to a speedy trial by an impartial jury, it does not follow that
the rejection of [allegedly] unqualified persons for insufficient cause would deprive appellant
of that right." (26)  Significant in our decision was that "no claim [was] made that the jury, as
finally constituted, was biased or prejudiced; or that appellant was deprived of a trial by an
impartial jury." (27)  We stated that "a defendant has no right that any particular individual serve
on the jury.  The defendant's only substantial right is that the jurors who do serve be
qualified." (28)  But here, Franklin's claims stem from the trial court's denial of a mistrial based
on Juror Spradlin's revelation during trial that she knew the victim and that this deprived him
of a trial by an impartial jury.  We find that the State's reliance on Jones is misplaced.
	This case is also distinguishable from Johnson v. State, (29) where we held that the
erroneous denial of a challenge for cause is subject to a harm analysis under Rule 44.2(b). (30) 
As we noted in Taylor v. State, when a defendant is prevented from questioning the venire, he
is prevented from obtaining information, which implicates constitutional protections. (31)  But
an erroneous denial of a challenge for cause does not prevent the defendant from obtaining
information; the defendant has elicited information from the jury with which he can
intelligently exercise his challenges for cause or peremptory challenges.  Here, Franklin never
had the opportunity to challenge Spradlin for cause or to strike her based on her relationship
with the victim, and this implicated his constitutional right to a trial by an impartial jury. 
Because the erroneous denial of a challenge for cause is not at issue here, we are not bound
to apply the standard of harm associated with that error.
	The Court of Appeals found that because "a defendant's constitutional right to counsel
requires that counsel be permitted to question the members of the jury panel in order to
intelligently exercise peremptory challenges," the error involved in this case was of
constitutional dimension. (32)  We have held that Article I, § 10, of the Texas Constitution
guarantees the right to counsel, which includes the right of counsel to question members of
the venire panel in order to intelligently exercise peremptory challenges. (33)  But regardless of
whether that type of error occurred, we believe that Juror Spradlin's withholding of material
information, the judge's denial of a  mistrial, and the judge's refusal to allow defense counsel
to ask Spradlin additional questions adversely affected Franklin's right to a fair and impartial
trial. Because we conclude that the trial court's failure to grant a mistrial after Spradlin
revealed that she withheld material information is constitutional error, we need not address
whether the error implicated Franklin's right to counsel. So we agree with the Court of Appeals
that the proper standard is the constitutional standard, but for a different reason. 
	Judge Keller's dissent argues that our harm analysis in this case conflicts with our
recent decision in Hawkins v. State. (34)  In Hawkins, we stated that whether a judge's failure to
grant a mistrial constitutes error inherently involves conducting a harm analysis. (35)  We said that
determining whether there is error involves determining whether the trial judge made a
mistake. (36)  But here, the issue is not whether the judge made a mistake.  We already concluded
in Franklin I that the trial judge did make a mistake. (37)  And despite the various
characterizations of that mistake by the parties and the Court of Appeals, the trial judge's only
remedy to correct the error was to grant a mistrial, which he did not do.  So, the only issue
before us now is whether the Court of Appeals used the proper standard of harm in evaluating
that error.  Our analysis therefore is not at odds with Hawkins.
	Judge Keller's dissent also asserts that our "only real argument for finding a violation
of the right to an impartial jury is that there does not exist enough information to determine
whether the juror is biased" and that we do not "explain why, from a constitutional
perspective, it is not enough that the trial court conducted its own inquiry." (38)  She states that
there was not any evidence in the record that Juror Spradlin was biased, and in fact that there
was evidence that Juror Spradlin was not biased based on her responses to the trial judge's
questioning. (39)   As we stated before, the issue before us is not whether the trial judge's ruling
was error, but what standard of harm to apply to that error.  And as we noted in response to
Judge Cochran's dissent, the defendant does not have to show evidence of actual bias; the
defendant need only show that the juror withheld material information despite the defendant's
due diligence in eliciting that information. (40)
	Judge Keller further states that if we are "contending that there is a constitutional basis
for requiring a trial court to allow the parties to question the juror, [we] have not explained
what constitutional provision imposes such a requirement or why it does." (41)  But we do not
hold here that Franklin had a constitutional right to ask the juror additional questions during
trial.  What we do hold is that because Franklin was unable to ask those questions during voir
dire in order to intelligently exercise his strikes based on that information, he was denied the
right to a fair and impartial jury.  As we stated before, the fact that the judge would not allow
Franklin to ask the juror additional questions at trial compounded the situation since he could
not then affirmatively get any evidence of bias on the record.
	In its second ground for review, the State argues that the Court of Appeals erred in
finding harmful error where the record does not show that the jury was not fair and impartial.
The State bases its argument on the premise that the proper standard for evaluating the harm 
is under Rule 44.2(b), and because Franklin was not denied a fair and impartial jury, the error
is harmless.  But under Rule 44.2(a), the proper standard of harm in this case, "the court of
appeals must reverse a judgment of conviction or punishment unless the court determines
beyond a reasonable doubt that the error did not contribute to the conviction or punishment." (42) 
The Court of Appeals did not have to find that the jury was not fair and impartial.  Instead, the
Court of Appeals was required to reverse the conviction unless it determined beyond a
reasonable doubt that the trial court's denial of a mistrial after Juror Spradlin revealed that she
knew the victim did not contribute to Franklin's conviction or punishment.  The Court of
Appeals in this case found that because the trial court "refused to admit the information that
would have permitted [it] to apply a harm analysis to the juror's failure to answer counsel's voir
dire questions accurately," there was an "absence of evidence that would allow [it] to determine
beyond a reasonable doubt that the error did not contribute to the conviction." (43)  The Court of
Appeals properly applied the standard of harm in this case.
Conclusion
	We find that the Court of Appeals did not err in analyzing the trial judge's denial of a
mistrial based on a juror's withholding of material information under Rule 44.2(a). (44)  The
Court of Appeals' judgment is affirmed.

DATE DELIVERED: 	June 30, 2004
PUBLISH 
1.  Franklin v. State, 986 S.W.2d 349, 352 (Tex. App.--Texarkana 1999).
2.  Id. at 354-55.
3.   Franklin v. State, 12 S.W.3d 473, 479 (Tex. Crim. App. 2000).
4.  Id.
5.  Franklin v. State, 23 S.W.3d 81, 83 (Tex. App.--Texarkana 2000); Tex. R. App.
P. 44.2(a).
6.   Franklin, 23 S.W.3d at 83.  
7.   Id.
8.  Id. at 82-83.
9.   Tex. R. App. P. 44.2.
10.    Id. 
11.  Jones v. State, 982 S.W.2d 386, 391 (Tex. Crim. App. 1998).
12.   Id.
13.   U.S. Const. amend VI.
14.   Morgan v. Illinois, 504 U.S. 719, 729 (1992).
15.  Raby v. State, 970 S.W.2d 1, 10 (Tex. Crim. App. 1998); Linnell v. State, 935
S.W.2d 426, 428 (Tex. Crim. App. 1996) (citing Nunfio v. State, 808 S.W.2d 482, 485
(Tex. Crim. App. 1991)); Dinkins v. State, 894 S.W.2d 330, 344-345 (Tex. Crim. App.
1995); Burkett v. State, 516 S.W.2d 147, 148 (Tex. Crim. App. 1974); Hernandez v. State,
508 S.W.2d 853, 854 (Tex. Crim. App. 1974); McCarter v. State, 837 S.W.2d 117, 119
(Tex. Crim. App. 1992); Naugle v. State, 118 Tex. Crim. 566, 568, 40 S.W.2d 92, 94
(1931); see also Janecka v. State, 937 S.W.2d 456, 471 (Tex. Crim. App. 1996); Smith v.
State, 676 S.W.2d 379, 384 (Tex. Crim. App. 1984); Mathis v. State, 167 Tex. Crim. 627,
628, 322 S.W.2d 629, 631 (1959).
16.  Salazar v. State, 562 S.W.2d 480, 482 (Tex. Crim. App. 1978).
17.  Id.
18.   Franklin, 12 S.W.3d at 478.
19.   See Salazar, 562 S.W.2d at 482.
20.   Franklin, 12 S.W.3d at 477.
21.  McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556 (1984).
22.   See Jones v. State, 596 S.W.2d 134, 137 (Tex. Crim. App. 1980).
23.   Robert G. Loewy, Note: When Jurors Lie: Differing Standards for New Trials,
22 Am. J. Crim. L. 733, 743 (1995).
24.  Jones v. State, 982 S.W.2d 386 (Tex. Crim. App. 1998).
25.  Id. at 391-92.
26.  Id. at 391.
27.   Id.
28.   Id. at 393.
29.  Johnson v. State, 45 S.W.3d 1(Tex. Crim. App. 2001).
30.   Id. at 2; Tex. R. App. P. 44.2(b).
31.   See Taylor v. State, 109 S.W.3d 443, 451-52 (Tex. Crim. App. 2003).
32.  Franklin, 23 S.W.3d at 83.
33.   Howard v. State, 941 S.W.2d 102, 108 (Tex. Crim. App. 1996).
34.  Hawkins v. State, No. 571-03, 2004 Tex. Crim. App. LEXIS 899, at * 9 (Tex.
Crim. App. May 19, 2004).
35.   Id.
36.   Id.
37.   Franklin v. State, 12 S.W.3d 473, 478-79 (Tex. Crim. App. 2000).
38.  Post, slip. op. at 6.
39.   Id. at 6.
40.  See Jones v. State, 596 S.W.2d 134, 137 (Tex. Crim. App. 1980).
41.  Post, slip. op. at 6-7.
42.   Tex. R. App. P. 44.2(a).
43.   Franklin, 23 S.W.3d at 83.
44.   Tex. R. App. P. 44.2(a). 

