



 





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



 KELLER, P.J., filed a dissenting opinion.

DISSENTING OPINION 


  
	The Court characterizes the issue as "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. (1)  But as we recently explained
in Hawkins v. State, the question is not whether the defendant was harmed by the court's denial of a
mistrial, but whether the trial court erred in the first place by refusing to grant a mistrial. (2)  The harm analysis
is built into the determination of whether the trial court abused its discretion by denying a mistrial. (3)  The
Court's harm analysis is, therefore, directly at odds with our recent holding in Hawkins. (4) 
	The Court contends that "[w]e already concluded in Franklin I (5) that the trial judge did make a
mistake" and therefore the only issue before us is the proper standard of harm. (6)  But Franklin I did not
in fact determine that the trial judge committed error in denying the request for a mistrial.  Rather Franklin
I agreed with the Court of Appeals's determination that the trial court erred in refusing to permit defense
questioning of the juror. (7)  The intermediate appellate court declined to reverse on the basis of that alleged
error because it believed the error was not preserved (8) and, as a consequence, that it was impossible to
determine whether the new information was "material." (9) Franklin I disagreed with those determinations
- holding that appellant had preserved his complaint (10) and that the new information was indeed "material." (11)
Franklin I did not, and could not have, addressed whether the trial court made a mistake in denying the
mistrial because the Court of Appeals never addressed whether the trial court erred in that regard.
	On remand from Franklin I, the Court of Appeals confused the issue of what error was being
addressed.  That court indicated that the error was not simply the refusal to permit questioning at trial but
also somehow involved counsel's inability to exercise for cause and peremptory strikes at voir dire:
The State argues that the error before this Court is solely the trial court's refusal to permit
counsel to question the juror. This view is not supported either by our initial opinion or by
the opinion of the Court of Criminal Appeals. In the Court of Criminal Appeal's opinion,
it first determined that error had been preserved for review - that error being the refusal
to permit questioning of the juror. The Court of Criminal Appeals then discussed the
question of whether the information withheld by the juror during voir dire was material.
If that information was material, then counsel was unable, through no fault of his own, to
intelligently exercise his peremptory strikes or to request a strike for cause on this juror. 
The Sixth Amendment guarantees the "assistance of counsel" and a trial before "an
impartial jury."  Part of this constitutional guarantee is an adequate voir dire to identify
unqualified jurors.  Essential to this guarantee is the right to question venire members in
order to intelligently  exercise peremptory challenges and challenges for cause. In other
words, 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. (12) 
 
	Although the Court of Appeals contended that its more expansive view of the nature of the error
was supported by its own and our opinions, as discussed above, neither of those previous opinions isolated
any error other than the refusal to permit questioning at trial.  The lower court apparently interpreted the
"materiality" discussion as invoking its more expansive view of error, but the lower court's prior opinion
had in fact held that materiality could not be determined due to an inadequate record, (13) and Franklin I's
discussion of materiality related to our holding that the trial court erred in refusing to permit questioning. (14)
	The upshot of all this is that the exact identity of the error at issue remains unresolved.  Originally,
the isolated error was the refusal to permit the defense to question the juror at trial.  On remand, the Court
of Appeals suggested that the error was the deprivation of appellant's right to intelligently exercise
peremptory and for cause challenges.  For the first time, the Court characterizes the error as the failure to
grant a mistrial.  The Court may be correct in recasting the error issue at this late stage, just as we did in
Hawkins, but then the remaining discussion of error and harm must be recast as well.  It is inconsistent to
recast the error for the first time and then claim that the error issue was resolved in a prior decision.       
	And the Court's failure to recast the issues under Hawkins creates problems with its analysis
regarding which harm standard to apply.  The Court suggests that a constitutional standard of harm applies
in the present context because appellant was unable to ask questions in voir dire in order to intelligently
exercise for cause and peremptory challenges, and this denied him the right to trial by a fair and impartial
jury.  But the right to intelligently exercise challenges is a separate right from the right to an impartial jury. 
I do not see any necessary connection between the two.  
	If the juror were biased and could not set that bias aside, then the right to an impartial jury would
be undermined.  But whether appellant would have exercised a peremptory challenge, or raised a challenge
for cause, do not by themselves establish that the juror in question was biased.  Nor was there any evidence
in this record that she was biased.  In fact, there was evidence, from the juror's response to the trial court's
questioning, that she was not biased.    The Court does not adequately explain why we should override
the trial court's determination that the juror was not biased when there is evidence in the record to support
that ruling.  It is true that we stated in Salazar that a juror's statement that the information withheld would
not affect his verdict is not dispositive when the information is material. (15)  But such a statement is at least
questionable in light of much more recent pronouncements from this Court upholding a trial court's ruling
regarding a juror's ability to serve impartially on the case when that ruling is supported by the record. (16) 
	Moreover, in Salazar, upon which the Court relies, it is clear that the juror intentionally withheld
the information. (17)   In the case at bar, however, the juror did not intentionally withhold the information. (18) 
In Franklin I, we held that the good faith of the juror is largely irrelevant when considering the materiality
of the information withheld. (19)  But while good faith may be irrelevant to the materiality of the information,
it should be relevant to whether the trial court is free to believe the juror when she says that the information
will not affect her deliberations.
	The Court's 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.  But the Court does not explain
how it arrives at that conclusion.  The trial court questioned the juror and received her verbal assurance of
impartiality.  The Court has not explained how the trial court's questioning was deficient.  The Court says
that appellant should not be held to the burden of proving bias or prejudice when he was not allowed to
ask questions, but the Court does not explain why, from a constitutional perspective, it is not enough that
the trial court conducted its own inquiry.  In fact, that's what happened in Salazar: the trial court conducted
its own inquiry without the assistance of the parties. (20)  If the Court is contending that there is a constitutional
basis for requiring a trial court to allow the parties to question the juror, it has not explained what
constitutional provision imposes such a requirement or why it does.
	 Arguably, a right of defense counsel to question the juror stems from the right to make a bill of
exceptions, but that right appears to stem from common law and court rules rather than the United States
or Texas constitutions. (21)
	Perhaps the Court is echoing the Court of Appeals's conclusion that the error in this case is the
deprivation of the intelligent use of strikes.  If that were the error, however, the logical place for that error
to have occurred would be during voir dire.  But the trial court committed no such error in voir dire.  To
find such an error in voir dire, we would have to make an exception to the general principle, discussed in
Hawkins, that error occurs only when the trial court makes a mistake and hold that a juror's conduct could,
by itself, create error to be complained about on appeal.  Moreover, to help appellant in this case, we
would have to further hold that such error could occur even when the juror acted in good faith and did not
intentionally withhold information.  I see no persuasive reason to make such an exception to Hawkins.   

	I respectfully dissent.
							KELLER, Presiding Judge
Date filed: June 30, 2004
Publish


1.   Court's op. at 5.
2.   2004 Tex. Crim. App. LEXIS 899, *9 (May 19, 2004).
3.  Id.at *10.
4.  Id.
5.   Franklin v. State, 12 S.W.3d 473 (Tex. Crim. App. 2000).
6.   Court's op. at 11.
7.   Franklin, 12 S.W.3d at 479 ("The trial court erred in denying appellant the opportunity to ask
questions of Juror Spradlin."); see also Franklin v. State, 986 S.W.2d 349, 353 (Tex.
App.-Texarkana 1999).
8.   Franklin, 986 S.W.2d at 353-354.
9.   Id. at 354-355.
10.   Franklin, 12 S.W.3d at 477.
11.   Id. at 477-478.
12.   Franklin v. State, 23 S.W.3d 81, 83 (Tex. App.-Texarkana 2000)(emphasis in original;
internal citations omitted).
13.   See above discussion.
14.   12 S.W.3d at 478-479.
15.   Id. at 482.
16.   Quinn v. State, 958 S.W.2d 395, 402 (Tex. Crim. App. 1997); see also Hughes v. State,
24 S.W.3d 833, 842 (Tex. Crim. App. 2000).
17.   562 S.W.2d at 482 ("It is clear that juror Wooley was in violation of his oath when he
withheld information during voir dire"). 
18.   Franklin, 12 S.W.3d at 478.
19.   Id.
20.   Salazar v. State, 562 S.W.2d 480, 481-482 (Tex. Crim. App. 1978).
21.   See Spence v. State, 758 S.W.2d 597, 599-600 (Tex. Crim. App. 1988), cert. denied,
499 U.S. 932 (1991).
