             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-18-00245-CR
     ___________________________

  DANIEL GITHUA NJOGO, Appellant

                    V.

          THE STATE OF TEXAS


On Appeal from County Criminal Court No. 10
           Tarrant County, Texas
          Trial Court No. 1508177


   Before Meier, Birdwell, and Bassel, JJ.
  Memorandum Opinion by Justice Birdwell
                           MEMORANDUM OPINION

       A jury convicted appellant Daniel Githua Njogo of driving while intoxicated

(DWI).1 On appeal from the conviction, Njogo contends that the trial court reversibly

erred by failing to test the qualifications of each veniremember to determine whether

the veniremember was a qualified voter, had been convicted of theft or a felony, and

had been indicted for theft or a felony. Njogo acknowledges that he did not complain

of this alleged failure in the trial court.2 The State concedes that the trial court should

have tested the veniremembers’ qualifications but asserts that the court’s alleged

failure to do so is harmless on the record presented. We agree with the State and

affirm the trial court’s judgment.

                                      Background

      A grand jury indicted Njogo for committing DWI. The case proceeded to a

trial before a jury, and Njogo pleaded not guilty. On the record during voir dire of the

venire, the trial court did not ask the veniremembers about their qualifications to

serve on the jury. At the end of voir dire, the parties challenged the same

veniremembers for cause, and when the trial court named the six veniremembers who

would serve as jurors, neither party objected.

       See Tex. Penal Code Ann. § 49.04(a) (West Supp. 2018).
       1


       2
        Before voir dire began, the trial court referred to the prior taking of an oath by
the veniremembers about their “qualifications.” It is unclear whether during off-the-
record proceedings, the veniremembers were examined through some process about
their qualifications to serve that are the focus of Njogo’s complaint in this court.


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      After the jury received the parties’ evidence and arguments, it found Njogo

guilty. The jury heard more evidence on his punishment and assessed seven days’

confinement. The trial court sentenced him accordingly. He brought this appeal.

The Trial Court’s Alleged Failure to Assess the Veniremembers’ Qualifications

      In his only issue, Njogo contends that the trial court reversibly erred by failing

to assess the qualifications of the veniremembers to serve on a jury. He acknowledges

that he did not make the same complaint in the trial court, but he contends that the

trial court’s alleged failure amounts to constitutional and structural3 error that

mandates reversal. The State contends that we should overrule Njogo’s issue because

the record does not demonstrate harm. We agree with the State.

      Chapter 35 of the code of criminal procedure requires a trial court to ask

veniremembers about their qualifications to serve on a jury. See Tex. Code Crim. Proc.

Ann. arts. 35.06, .10, .12, .21 (West 2006). The court must ask the veniremembers

whether they are qualified voters under the Constitution and Texas law, whether they

are convicted felons or thieves, and whether they are under indictment or legal

accusation for a theft or any felony. Id. art. 35.12(a). A party may challenge a

veniremember who is not a qualified voter, who is a convicted felon or thief, or who


      3
        The court of criminal appeals has expressed that an error is “structural”—
meaning that the error is categorically immune from a harm analysis—only when the
United States Supreme Court has labeled it as such. Lake v. State, 532 S.W.3d 408, 411
(Tex. Crim. App. 2017) (plurality op.). Njogo does not contend that the alleged error
in this case relates to federal constitutional law or that any Supreme Court decision
governs the error.

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has been legally accused of a felony or theft. Id. art. 35.16 (a)(1)–(3) (West 2006).

When a party makes one of the latter two challenges, the trial court must disqualify

the veniremember. Id. art. 35.19 (West 2006).

         The record does not disclose that the trial court questioned the veniremembers

in accordance with these provisions, nor does it disclose that either party objected to

the court’s failure to do so or challenged any veniremember on the grounds discussed

above. Relying on state constitutional provisions that generally protect the right of a

trial by an impartial jury and describe certain convicts who should be excluded from

jury service,4 but citing no supporting judicial decisions, Njogo contends that the trial

court’s alleged failure to assess the veniremembers’ qualifications requires reversal

without any prior objection and with no showing of harm. We cannot agree.

         To reverse a conviction, we generally require a showing of harm that results

from an error. See Tex. R. App. P. 44.2. When an error arises from a trial court’s

statutory violation, we ask whether the error affected the defendant’s substantial

rights. See Tex. R. App. P. 44.2(b); Gray v. State, 159 S.W.3d 95, 98 (Tex. Crim. App.

2005).

         Article 44.46 of the code of criminal procedure states that even when a

veniremember who is “absolutely disqualified” serves on a jury, a conviction may be

reversed only when (1) the defendant raises disqualification before the entry of the

verdict, or (2) “the defendant makes a showing of significant harm by the service of

         See, e.g., Tex. Const. art. I, §§ 10, 15, art. XVI, § 2.
         4



                                                4
the disqualified juror.” Tex. Code Crim. Proc. Ann. art. 44.46 (West 2018). The court

of criminal appeals has held that article 44.46 applies in “all cases” and prevents

automatic reversal for the service of a disqualified juror. Nelson v. State, 129 S.W.3d

108, 111–12 (Tex. Crim. App. 2004); see also White v. State, 225 S.W.3d 571, 574 (Tex.

Crim. App. 2007) (holding that the mere presence of two absolutely disqualified jurors

did not demonstrate significant harm under article 44.46).

      Although article 44.46 does not address the precise circumstance present

here—the trial court’s failure to discern (at least on the record) whether each

veniremember was qualified—it establishes that matters of absolute juror

disqualification are subject to harm analyses. See Tex. Code Crim. Proc. Ann. art.

44.46(2). If the record must establish “significant harm” from a known disqualified

juror’s service to warrant reversal when the disqualification issue was not raised before

entry of the verdict, it follows that the record must similarly show harm when a trial

court has failed to inquire about a veniremember’s qualifications and no party raises

that issue in the trial court. Texas courts have so held. See Melton v. State, No. 06-05-

00280-CR, 2007 WL 608371, at *1–2 (Tex. App.—Texarkana Mar. 1, 2007, no pet.)

(mem. op., not designated for publication) (relying on article 44.46 to hold that when

a trial court misstated that veniremembers could serve as jurors if they had been

convicted of misdemeanor theft and when it was unknown if a disqualified juror

actually served because of the misstatement, there was no reversible error because

there was no showing of harm); Woolridge v. State, No. 01-95-00822-CR, 2001 WL

                                           5
700501, at *3 (Tex. App.—Houston [1st Dist.] June 21, 2001, no pet.) (op. on

remand, not designated for publication) (overruling the appellant’s argument when the

record did not disclose whether a juror was absolutely disqualified and the record did

not show harm); Smith v. State, 742 S.W.2d 847, 851 (Tex. App.—Austin 1987, no pet.)

(holding that a trial court’s failure to make an inquiry required by chapter 35 was

harmless because the record did not show that any juror was disqualified).

      We agree with the holdings in these cases, and we have not found any contrary

authority suggesting that the trial court’s failure to test veniremembers’ qualifications

is immune from a harm analysis. Accordingly, we hold that because the record does

not show harm from the trial court’s alleged failure to assess the veniremembers’

qualifications, the error is not reversible. See Tex. Code Crim. Proc. Ann. art. 44.46(2);

Tex. R. App. P. 44.2(b). We overrule Njogo’s sole issue.

                                      Conclusion

      Having overruled Njogo’s only issue, we affirm the trial court’s judgment.


                                                       /s/ Wade Birdwell

                                                       Wade Birdwell
                                                       Justice

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

Delivered: December 31, 2018




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