                                MEMORANDUM OPINION
                                       No. 04-10-00690-CR

                                    Jose Isaac DELAFUENTE,
                                             Appellant

                                                  v.

                                       The STATE of Texas,
                                             Appellee

                     From the 198th Judicial District Court, Kerr County, Texas
                                     Trial Court No. B91-140
                         The Honorable M. Rex Emerson, Judge Presiding

Opinion by:      Rebecca Simmons, Justice

Sitting:         Catherine Stone, Chief Justice
                 Sandee Bryan Marion, Justice
                 Rebecca Simmons, Justice

Delivered and Filed: August 17, 2011

AFFIRMED

           Appellant Jose Isaac Delafuente was convicted of murder and sentenced to life

imprisonment. His sole issue on appeal is that the trial court committed reversible error by

erroneously granting the State’s challenge of a veniremember for cause. See TEX. CODE CRIM.

PROC. ANN. art. 35.16 (West 2006). We affirm the trial court’s judgment.
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                                                 BACKGROUND

         Delafuente was indicted for the murder of his wife and his case was tried before a jury.

During voir dire, the State asked the venire panel whether any member had been charged,

arrested, or prosecuted for any crime. Veniremember No. 1, Patricia Hefner, did not respond

affirmatively to the question. Hefner was called to the bench for additional questioning. She

explained that she was once detained for six hours for transporting illegal aliens but had never

been arrested, charged, or convicted of a crime. The State then challenged Hefner for cause due

to her failure to respond to its questioning and her lack of candor with the court. The State’s

challenge was granted over defense counsel’s objection.

                                           CHALLENGE FOR CAUSE 1

         The State does not dispute that it failed to establish grounds for a challenge for cause.

Delafuente argues that the error was constitutional and requires reversal. See TEX. R. APP. P.

44.2(a). However, the erroneous excusal of a juror seldom rises to constitutional error. In Jones

v. State, 982 S.W.2d 386 (Tex. Crim. App. 1998), the Court of Criminal Appeals stated, “[O]nly

in very limited circumstances, when a juror is erroneously excused because of general opposition

to the death penalty . . . does the exclusion of a juror by an unintentional mistake amount to a

constitutional violation.” See id. at 391 (footnote omitted). Aside from those very limited

circumstances, which are not present in this case, we must disregard the error “unless it affected

substantial rights.” Id. at 391–92 (citing TEX. R. APP. P. 44.2(b)). Accordingly, “the erroneous

excusing of a veniremember will call for reversal only if the record shows that the error deprived

the defendant of a lawfully constituted jury.” Id. at 394.


1
  The State argues that error was not preserved because the grounds for Delafuente’s objection were not sufficiently
clear. However, the record reflects that defense counsel objected to the State’s challenge of Hefner because there
was no “legal basis for a for cause challenge.” The basis for the objection was sufficiently specific or apparent from
context and, therefore, the error is preserved. See TEX. R. APP. P. 33.1.

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       Delafuente argues that the erroneous grant of a challenge for cause effectively gives the

State an extra peremptory challenge that is unfair to the defendant and implicates the Fourteenth

Amendment. Relying on Judge Baird’s dissent in Jones and noting that the majority opinion

primarily discusses the Sixth Amendment right to an impartial jury, Delafuente asserts that the

Court of Criminal Appeals has not yet addressed whether an erroneous excusal of a juror violates

a defendant’s due process rights under the Fourteenth Amendment. See id. at 396 (Baird, J.,

dissenting) (arguing that “by subverting [article 35.16], the trial judge violated appellant’s due

process rights as mandated by the Fourteenth Amendment”). We disagree. By holding that the

erroneous grant of a challenge for cause is not constitutional error except in very limited

circumstances, the Court of Criminal Appeals has implicitly rejected Delafuente’s argument. See

id. at 391 (majority opinion).

       We therefore apply the reversible error standard as articulated in Jones: whether “the

error deprived the defendant of a lawfully constituted jury.” See id. at 394; see, e.g., Gamboa v.

State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009) (applying Jones’s standard); George v.

State, No. 04-99-00461-CR, 2000 WL 770518, at *2 (Tex. App.—San Antonio June 14, 2000,

no pet.) (not designated for publication) (same). Delafuente presents no argument for how the

jury was not lawfully constituted and the record does not reflect as much. Consequently, we

must disregard the error. See TEX. R. APP. P. 44.2(b); Jones, 982 S.W.2d at 391, 394.

                                          CONCLUSION

       Based on the foregoing, we affirm the trial court’s judgment.


                                                 Rebecca Simmons, Justice

DO NOT PUBLISH




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