             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. PD-1440-13



                        FARRAIN JOSEPH COMEAUX, Appellant

                                                   v.

                                    THE STATE OF TEXAS

         ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE NINTH COURT OF APPEALS
                         JEFFERSON COUNTY

       J OHNSON, J., filed a concurring opinion in which H ERVEY, J., joined.

                            CONCURRING OPINION

       For years, we have described the litany that must be followed when challenging a juror as

preserving the error. Today, the Court points out that the real issue is harm. The confusion is

understandable; parts of the litany preserve error, and other parts consider harm.

       Step one: challenge a prospective juror for cause and lose. I put this part under preserving

the error pursuant to our case law, which requires a litigant to timely inform the trial court of his or

her complaint and thereby allow the trial court to reconsider its ruling while there is an opportunity

to correct any error that it may have committed.
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        Step two: use a peremptory challenge on the challenged prospective juror. I put this part

under harm. If a litigant has a way to keep off the jury a person who is perceived to be biased and

does not do so, any harm that comes is self-inflicted.

        Step three: exhaust the statutory peremptory challenges. I put this step under harm because,

again, if a litigant has a way to keep off the jury a person who is perceived to be biased and does not

do so, any harm that comes is self-inflicted. This step was a misstep in this case; an available

peremptory challenge was not used on the juror about which appellant complains.

        Step four: ask the trial court for additional peremptory challenges and be denied. I put this

step under preserving error; in court, one must generally ask for relief or one will not get it. If a

litigant concludes that a legitimate challenge for cause was erroneously denied, but does not ask the

trial court to correct its error by granting additional peremptory challenges, any harm that comes is

self-inflicted.

        Step five: identify an objectionable prospective juror who sat on the jury. I put this step

under preservation of error; if a litigant does not notify the trial court that a juror who is perceived

as biased against the litigant has been seated on the jury, the trial court may not know that the litigant

objects and thus will have no reason to reconsider its ruling in light of any stated objections to that

juror by the litigant.

        The underlying purpose of the litany is to seat a jury that will render a just verdict. It seems

to me that steps one, four, and five of the litany are designed to allow correction of error in and by

the trial court and to produce a record sufficient to allow the appellate courts to address the real

issue, harm.

        I join the opinion of the Court.
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Filed: October 15, 2014
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