            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                      NO. PD-1509-12


                      DAMIAN DEMITRIUS EASLEY, Appellant

                                               v.

                                 THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE TENTH COURT OF APPEALS
                        MCLENNAN COUNTY

       KEASLER, J., delivered the unanimous opinion of the Court.

                                       OPINION

       The judge presiding over Damian Easley’s trial prohibited Easley’s counsel in voir

dire from comparing other legal burdens of proof to the beyond-a-reasonable-doubt burden

in criminal trials. The court of appeals found the judge’s ruling to be erroneous, but harmless

after applying a non-constitutional harm analysis. We affirm and overrule our previous cases

holding that preventing a defendant’s counsel from asking proper questions of the venire is

an error of constitutional dimension per se.
                                                                                 EASLEY—2

                                       BACKGROUND

       During voir dire, the judge presiding over Damian Easley’s family-violence assault

trial prohibited Easley’s counsel from discussing different legal standards of proof and

contrasting those with standards with the beyond-a-reasonable-doubt standard applicable in

criminal trials. The record shows that he tried on several occasions to discuss the lesser

standards of probable cause and preponderance of the evidence applicable to civil trials. His

attempts were cut short by the judge’s admonitions that “we don’t compare standards of

proof” and “I don’t allow you to get into the stairstep thing of probable cause and reason to

believe and that sort of stuff.” The jury convicted Easley, and he was sentenced to twenty

years’ confinement. He appealed the judge’s refusal to allow him to explore the differing

burdens of proof.

       In accordance with our Fuller v. State1 opinion, the Waco Court of Appeals held that

the judge erred in refusing to allow Easley’s counsel to question the jury panel on the

differences between the criminal and civil burdens of proof.2 The court concluded, however,

that the error was a non-constitutional error for purposes of a harm analysis and was harmless

because it did not affect a substantial right. Easley’s petition for discretionary review was

granted to determine whether the court of appeals applied the correct harm standard, and if

so, whether it reached the correct result.

       1
           363 S.W.3d 583 (Tex. Crim. App. 2012).
       2
        Easley v. State, No. 10-12-00018-CR, 2012 WL 4040798, *1 (Tex. App.—Waco
2012) (mem. op., not designated for publication).
                                                                                   EASLEY—3

                                          ANALYSIS

       The court of appeals relied upon this Court’s opinions in Fuller and Rich v. State3 for

the proposition that the non-constitutional harm standard found in Texas Rule of Appellate

Procedure 44.2(b)4 applied to the judge’s error. However, neither Fuller nor Rich expressly

support this proposition. In Fuller, we held the trial court abused its discretion by prohibiting

Fuller’s counsel from asking the venire about different burdens of proof found in the law and

remanded to the court of appeals to conduct a harm analysis.5 Fuller relied on Rich and

Jones v. State6 in concluding that this type of error is subject to a harm analysis, but remained

silent regarding the nature of the error or under which Rule of Appellate Procedure the error

should be evaluated.7

       Rich also provides little guidance on the matter. Similarly confronted with a judge’s

refusal to allow defense counsel to ask a proper question of the venire, we granted Rich’s

petition for discretionary review to address the court of appeals’ conclusion that the judge’s

error was harmless.8 The court of appeals found the error to be non-constitutional and


       3
           160 S.W.3d 575 (Tex. Crim. App. 2005).
       4
         TEX. R. APP. P. 44.2(b) (“Other errors. Any other error, defect, irregularity, or
variance that does not affect substantial rights must be disregarded.”).
       5
           Fuller, 363 S.W.3d at 584–85, 589.
       6
           Jones v. State, 223 S.W.3d 379 (Tex. Crim. App. 2007).
       7
           Fuller, 363 S.W.3d at 589.
       8
           Rich, 160 S.W.3d at 576–77.
                                                                                  EASLEY—4

applied Rule of Appellate Procedure 44.2(b).9 Because Rich did not contest this conclusion,

we assumed without deciding that the court of appeals used the proper rule.10 Under this

assumption, we found that a harm analysis relating to an erroneously excluded question to

the venire should be reviewed like an erroneous-admission-of-evidence error and set out

various factors to be considered.11

       In Jones we were again presented with a judge’s refusal to allow a defendant’s

counsel to ask a proper question during voir dire.12 Declining to question previous

interpretations of the Texas Constitution provision at issue, the Jones majority adhered to

precedent and found that the error was of constitutional dimension.13 In resolving the present

case, we find squarely presented what the Jones majority found imprudent to resolve: should

this Court reevaluate our precedent that prohibiting a defendant’s proper question in voir dire

is an error that runs afoul of the Texas Constitution?

       Article I, § 10 of the Texas Constitution provides, in part, that “[i]n all criminal

prosecutions the accused . . . shall have the right of being heard by himself or counsel, or

both.” We have interpreted this provision to provide the “right to appear by counsel.” Two



       9
            Id.
       10
            Id.
       11
            Id. at 577–78.
       12
            Jones, 223 S.W.3d at 380.
       13
            Id. at 382.
                                                                                  EASLEY—5

of our earliest cases—Plair v. State and Carlis v. State—hold that the right to appear by

counsel encompasses the right to interrogate prospective jurors.14 In both cases, the judge

refused defendants’ counsel the ability to individually ask proper questions of the venire.

Upon finding error in both cases, we reversed. However, whether we should continue to

apply the holdings in Plair and Carlis is questionable.

       In Plair, the judge refused to allow Plair’s counsel the ability to ask each prospective

juror individually whether he would require the State to prove the offense beyond a

reasonable doubt and whether his verdict would be affected by the defendant’s race, among

other questions.15 After counsel posed these questions to several jurors individually, the

judge became concerned about the amount of time that would be required to seat a jury. As

a purported time-saving measure, the judge asked the venire as a group each question Plair’s

counsel had intended to ask prospective jurors individually “with an admonition that the

questions were directed to each individually, and for any one to speak up and answer.”16 In

finding that the judge erred, Plair emphasized the right to counsel to assess a prospective

juror’s responses in light of individual questioning:

       Again we think it clear that the right to appear by counsel carries with it the
       right of counsel to interrogate each juror individually, to the end that he may
       form his own conclusion after this personal contact with the juror as to


       14
         Jones, 223 S.W.3d at 381; Plair v. State, 279 S.W. 267, 269 (Tex. Crim. App.
1925); Carlis v. State, 51 S.W.2d 729, 730 (Tex. Crim. App. 1932).
       15
            Plair, 279 S.W. at 268.
       16
            Id.
                                                                                 EASLEY—6

       whether, in the counsel’s judgment, he would be acceptable to him, or whether
       on the other hand he should exercise a peremptory challenge to keep him off
       of the jury.17

Because the judge erred in refusing counsel the opportunity to individually question

prospective jurors on these issues, the judgment was reversed.18 The Plair Court elaborated

on its earlier holding in its opinion on the State’s motion for rehearing: “To prepare himself

for the intelligent exercise of the peremptory challenges allowed him by statute, one accused

of crime has the right, through his counsel, to direct to the veniremen appropriate

questions.”19

       In Carlis, this Court also found that the trial judge erred in refusing individual

questioning and found insufficient the judge’s asking the venire as a whole the question

Carlis’s counsel sought to ask each prospective juror individually.20 Relying upon Plair in

large measure, this Court found that the judge’s refusal to permit counsel’s individual

questioning infringed upon his ability to intelligently exercise his statutory peremptory

challenges.21 And like Plair, the judgment below was reversed upon finding that the judge




       17
            Id. at 269.
       18
            Id.
       19
            Id. at 270 (op. on motion for reh’g).
       20
            Carlis, 51 S.W.2d at 730.
       21
            Id.
                                                                                 EASLEY—7

erred.22 Over ninety years later, Plair remains controlling law.23 While we recognize that

precedent should not be overruled lightly,24 it may be necessary “if the reasons for doing so

are weighty enough.”25 When considering whether to overrule our precedent, we have

considered whether the original rule or decision was flawed from the outset and the rule

conflicts with other precedent, especially when the other precedent is newer and more

soundly reasoned.26

       We conclude that the reasons for overruling Plair and its progeny are sufficiently

weighty. At the outset, even with its assumption that this precedent was correctly decided,

the Jones majority recognized that calling this particular right a “right to counsel” is a

“misnomer” because the right to ask proper questions of the venire would apply even if the

accused was representing himself.27 But more importantly, Plair’s interpretation of Texas

Constitution Article I, § 10’s “right to be heard” language imprecisely defines an accused’s

right to counsel by implicitly holding that the use of peremptory challenges is so integral to


       22
            Id. at 731.
       23
          See, e.g., Jones, 223 S.W.3d at 382; Howard v. State, 941 S.W.2d 102, 108
(Tex. Crim. App. 1996); Smith v. State, 703 S.W.2d 641, 643 (Tex. Crim. App. 1985);
Powell v. State, 631 S.W.2d 169, 170 (Tex. Crim. App. 1982); Mathis v. State, 576
S.W.2d 835, 836–37 (Tex. Crim. App. 1979).
       24
            See Hammock v. State, 46 S.W.3d 889, 892 (Tex. Crim. App. 2001).
       25
            Grey v. State, 298 S.W.3d 644, 646 (Tex. Crim. App. 2009).
       26
            Id.
       27
            Jones, 223 S.W.3d at 381.
                                                                                   EASLEY—8

the right’s existence that any impediment imposed on counsel’s ability to use peremptory

challenges necessarily means that the accused’s right to counsel was violated. We disagree

with the overly broad conclusion that every restriction on counsel’s voir dire presentation

violates an accused’s right to counsel.

       Furthermore, Plair’s holding is flawed because its reasoning would result in every

error committed during a proceeding in which the accused is “heard by himself or counsel

or both”—meaning every case, as Judge Womack has observed28—would be of constitutional

dimension. In his dissent in Jones, Judge Womack considered a sampling of what counsel

does to ensure that the accused is “heard” in trial:

       Counsel may make challenges (both peremptory and for cause) to potential
       jurors, make an opening statement, object to the evidence offered by the State,
       cross-examine a witness called by the State, offer evidence, request and object
       to the court’s charges to the jury, argue to the jury, and object to the State’s
       argument to the jury.29

If we were to follow Plair’s reasoning strictly, any trial error relative to counsel’s efforts in

one of these areas would rise to the level of constitutional dimension.30 But we have not so

held, and Plair’s reasoning is difficult to square with our more recent cases; even a small

collection of which illustrates the incongruity.

       In George Alarick Jones v. State, Jones’s counsel objected to the judge’s granting of



       28
            Id. at 385 (Womack, J., dissenting).
       29
            Id. at 384.
       30
            Id. at 385.
                                                                                  EASLEY—9

the State’s for-cause challenge of a particular veniremember.31 After finding the judge erred

in granting the State’s challenge, we were confronted with determining the nature of this

error under Texas Rule of Appellate Procedure 44.2. We noted that, “Constitutional

provisions bear on the selection of a jury for the trial of a criminal case.”32 However, it was

the right to a speedy and public trial by an impartial jury embodied both in the federal and

Texas Constitution that this Court identified as the most pertinent to jury selection.33

Although we stated that a trial judge’s error in excluding a potential juror “for impermissible

reasons (such as race, sex, or ethnicity) may violate other constitutional provisions,” an error

in granting the State’s challenge was not of constitutional dimension.34 Accordingly, such

an error is normally evaluated under Texas Rule of Appellate Procedure 44.2(b)’s non-

constitutional error standard35—that the error should be disregarded unless it affected the

defendant’s substantial rights.36 We have also relied upon the reasoning in George Jones to

       31
            George Jones v. State, 982 S.W.2d 386, 388 (Tex. Crim. App. 1998).
       32
            Id. at 391.
       33
            Id.
       34
         Id. (noting that, “[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”).
       35
          Id. at 391–92; Gray v. State, 233 S.W.3d 295, 298–99, 301 (Tex. Crim. App.
2007) (“Just as the Supreme Court explained in Taylor v. Louisiana, [419 U.S. 522, 538
(1975),] we determined that a ‘defendant’s only substantial right is that the jurors who do
serve on the finally constituted petit jury be qualified. The defendant’s rights go to those
who serve, not to those who are excused.’”) (alterations in original omitted).
       36
            TEX. R. APP. P. 44.2(b).
                                                                                EASLEY—10

hold that errors in denying a defendant’s challenge for cause are non-constitutional errors and

should be examined under Rule 44.2(b) to determine whether their effects were harmful.37

       We have similarly held that many errors concerning the erroneous admission of the

State’s evidence over a defendant’s objections are non-constitutional errors. A review of our

previous cases shows that even the erroneous admission of potentially damaging evidence

warranted a non-constitutional harm analysis: statements from a deceased victim,38 a written

statement from a surviving victim,39 emotional testimony in the guilt phase from a victim’s

mother discussing how she adopted the victim as an infant after volunteering at a hospital,40

references to a pre-trial proffer and plea negotiations,41 and scientifically unreliable expert

testimony.42

       Likewise, we have generally labeled errors in sustaining the State’s objections to the

admission of a defendant’s evidence as non-constitutional.43 Only in specific instances in

which the precluded evidence forms a vital portion of the defendant’s case will such an error




       37
            Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001).
       38
            Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004).
       39
            Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
       40
            Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).
       41
            Whitaker v. State, 286 S.W.3d 355, 363–64 (Tex. Crim. App. 2009).
       42
            Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010).
       43
            Walter v. State, 247 S.W.3d 204, 219 (Tex. Crim. App. 2007).
                                                                                  EASLEY—11

be considered constitutional error.44 A constitutional violation may arise only if “(1) a state

evidentiary rule categorically and arbitrarily prohibits the defendant from offering otherwise

relevant, reliable evidence vital to his defense; or (2) a trial court’s clearly erroneous ruling

results in the exclusion of admissible evidence that forms the vital core of a defendant’s

theory of defense and effectively prevents him from presenting that defense.”45 And even

when such an error in this context rises to the level of constitutional magnitude, the

constitutional provision offended is the Fourteenth Amendment’s Due Process Clause of the

United States Constitution, specifically the ability to present a defense, not necessarily the

right to counsel found in the Texas Constitution.46

       Errors in ruling on objections to the State’s jury arguments have routinely been held

to be non-constitutional.47 In Mosely v. State, the State argued in its jury summation that the

defense had attempted to mislead the jurors down “side roads” and “rabbit trails,” and that

“[t]hey don’t want you to stay on the main road because they know where that will take




       44
            Id.; Potier v. State, 68 S.W.3d 657, 665 (Tex. Crim. App. 2002).
       45
            Walters, 247 S.W.3d at 219.
       46
         See generally Potier, 68 S.W.3d at 659–65 (reviewing the holdings of the
United States Supreme Court and federal circuit courts).
       47
          See, e.g., Brown v. State, 270 S.W.3d 564, 572 (Tex. Crim. App. 2008);
Martinez v. State, 17 S.W.3d 677, 692 (Tex. Crim. App. 2000); Mosely v. State, 983
S.W.2d 249, 258 (Tex. Crim. App. 1998). But see Randolph v. State, 353 S.W.3d 887,
891 (Tex. Crim. App. 2011) (stating that “[a] comment on a defendant’s failure to testify
violates both the state and federal constitutions as well as Texas statutory law.”).
                                                                                  EASLEY—12

you.”48 Mosely objected that the argument was an attack on him over the shoulders of

counsel. The judge overruled the objection. This Court stated that “[a]lthough a special

concern, improper comments on defense counsel’s honesty have never been held to amount

to a constitutional violation. Instead we have characterized such comments as falling outside

the areas of permissible argument. We find that such comments constitute ‘other errors’

within the purview of Rule 44.2(b).”49 In Martinez v. State, the State argued in closing

arguments in the punishment phase of Martinez’s death-penalty trial that “the victims and

families cry out for the death penalty” and for jurors to “think about the nurses in the

penitentiary. Think about the secretaries. Think about the guards.”50 We found that both

comments were outside the record. Following Mosely’s holding, the Martinez Court found

that “[c]omments upon matters outside the record, while outside the permissible areas of jury

argument, do not appear to raise any unique concerns that would require us to assign

constitutional status.”51

       The above cases demonstrate that Plair is anomalous in equating a judge’s single

error in voir dire, which may adversely affect counsel’s use of peremptory challenges, with

a deprivation of the right to counsel itself and therefore a constitutional error. In so holding,



       48
            Mosely v. State, 983 S.W.2d at 258.
       49
            Id. at 259.
       50
            Martinez v. State, 17 S.W.3d 677, 692 (Tex. Crim. App. 2000).
       51
            Id.
                                                                                 EASLEY—13

Plair exalts the questioning of veniremembers and use of peremptory challenges above all

of counsel’s other duties inherent in his representation of an accused that are equally

important to ensuring the accused receives a fair trial.52 Our more recent cases also

undermine the force of Plair’s holding by continuing to apply a non-constitutional harm

analysis to errors that, under Plair’s reasoning, could be considered an infringement on the

accused’s right to be heard by counsel. Again, if we were to associate any trial error relative

to counsel’s ability to ensure the accused is “heard” at trial, we would be forced to reach the

illogical conclusion that nearly every error in a criminal case is of constitutional dimension

because the error, in some measure, deprived the accused of his right to counsel.

       For these reasons, we overrule Plair to the extent it holds that erroneously limiting an

accused’s or counsel’s voir dire presentation is constitutional error because the limitation is

a per se violation of the right to counsel. This, of course, is different from holding that such

an error may never rise to the level of constitutional magnitude. There may be instances

when a judge’s limitation on voir dire is so substantial as to warrant labeling the error as

constitutional error subject to a Rule 44.2(a) harm analysis. This case, however, does not

present one. The court of appeals correctly held that the judge’s error in prohibiting Easley’s

counsel from asking proper questions of the venire was non-constitutional error. It is


       52
          See Jones, 223 S.W.3d at 384 (Womack, J., dissenting) (“Why is only an error
in ruling on a question to a potential juror always of constitutional dimension? The
Constitution does not say so. Is it because counsel’s question to a potential juror is more
‘constitutional’ than counsel’s challenge of a juror, or the introduction of evidence, or the
court’s charge to the jury, or the argument of counsel? Surely not.”).
                                                                                EASLEY—14

undoubtedly important for jurors to understand the concept of the beyond-a-reasonable-doubt

burden of proof.53 While erroneous, the judge’s refusal to allow Easley’s counsel to compare

other burdens of proof did not mean he was foreclosed from explaining the concept of

beyond a reasonable doubt and exploring the veniremembers’ understanding and beliefs of

reasonable doubt by other methods.

                              RULE 44.2(b) HARM ANALYSIS

       The court of appeals reviewed the error under Rule 44.2(b), which requires that “[a]ny

other error, defect, irregularity, or variance that does not affect substantial rights must be

disregarded.”54 In Rich, we held that the same general factors used in cases in which

evidence was erroneously admitted are relevant considerations in determining harm from

being denied a proper question to the venire.55 We stated that an appellate court “should

consider everything in the record, including any testimony or physical evidence admitted for

the jury’s consideration, the nature of the evidence supporting the verdict, the character of

the alleged error and how it might be considered in connection with other evidence in the

case, the jury instructions, the State’s theory and any defensive theories, closing arguments,

voir dire, and whether the State emphasized the error.56



       53
            Fuller, 363 S.W.3d at 588.
       54
            Easley, 2012 WL 4040798 at *2; TEX. R. APP. P. 44.2(b).
       55
            Rich, 160 S.W.3d at 577–78.
       56
            Id.
                                                                                 EASLEY—15

       Relying on our Rich opinion, the court of appeals found that the judge’s error did not

have a substantial and injurious effect or influence on the jury’s verdict.57 We agree that a

review of the record weighs against finding harm. In particular, we find the entirety of

Easley’s counsel’s voir dire and the nature of the evidence supporting the verdict to be the

most applicable and significant factors in light of the particular error found by the court of

appeals.

       Although not permitted to compare differing standards and do what the trial judge

characterized as the “stairstep thing,” counsel was still free to question the venire concerning

their concept of reasonable doubt, albeit by a different manner.58 Even though counsel was

denied his preferred method of describing the criminal burden of proof, he was able to clarify

that the standard of proof in a civil trial was different, and when he asked a veniremember

why the civil standard is different from the criminal standard, the veniremember answered,

“Well, I guess because of the seriousness of the issue.” Although not permitted to compare

and contrast differing burdens of proof at length, he was not precluded from discussing and

explaining the beyond-a-reasonable-doubt standard. Other portions of counsel’s voir dire

suggest he did just that. He individually asked the first forty-four veniremembers, “If there

is something that raises in your mind a single doubt based on reason as to assault, what’s


       57
            Easley, 2012 WL 4040798 at *2.
       58
          See Fuller, 363 S.W.3d at 587 (concluding that “inquiry into a prospective
juror’s understanding of what proof beyond a reasonable doubt means constitutes a proper
question.”).
                                                                                EASLEY—16

your verdict?” All answered, “Not guilty.” By his questioning and subsequent responses,

Easley’s counsel was able to demonstrate and effectively make his point that criminal trials

require a heightened burden of proof and the presumption of innocence. Counsel repeated

his point in closing arguments: “Remember during jury selection we talked about the State’s

burden of proof, beyond a reasonable doubt. It’s used for taking away a person’s liberty.

That’s [why] we are in this courtroom. Before you take away the liberty of my client, all

doubt based on reason must be excluded . . . . All doubt based on reason as to assault must

be excluded, if you have a single doubt in you mind based on reason as to assault in this

case.”

         Additionally, the evidence supporting the jury’s verdict was substantial. The victim

testified that Easley punched her in the back, called her names, pulled her down on the couch

by her hair, choked her, and then threatened, “I’ll be back and shoot this whole place up,”

before fleeing the scene. The admitted photographs show injuries consistent with the manner

of Easley’s assault. The testimony from three witnesses corroborated the victim’s testimony

in that they saw that the victim was visibly upset, saw the effects of the victim’s assault

injuries, which were consistent with victim’s description of the assault, and heard the threats

to “shoot the place up.” One of the three identified Easley as the one who made the threat.

                                        CONCLUSION

         The court of appeals correctly concluded that the error in refusing Easley’s counsel

from discussing other burdens of proof in voir dire was a non-constitutional error analyzed
                                                                              EASLEY—17

under Rule 44.2(b). We further conclude that the court of appeals was correct in finding the

error harmless. The court of appeals’ judgment is affirmed.



DELIVERED: March 12, 2014

PUBLISH
