                                    NO. 07-02-0109-CR

                                 IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL D

                                      APRIL 11, 2003

                           ______________________________


                      LLOYD ORVILLE ROBERTSON, APPELLANT

                                            V.

                           THE STATE OF TEXAS, APPELLEE


                         _________________________________

               FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

               NO. 44,095-E; HONORABLE RICHARD DAMBOLD, JUDGE

                          _______________________________

Before QUINN and REAVIS and CAMPBELL, JJ.


                                  MEMORANDUM OPINION1


      On February 19, 2002, a Potter County jury convicted appellant Lloyd Orville

Robertson of aggravated assault against a public servant. The following day, the jury

assessed as punishment a sentence of confinement for a period of 99 years. In his sole


      1
          Tex. R. App. P. 47.4
point of error, appellant complains he was deprived of his constitutionally-guaranteed right

to counsel when the trial court denied his request during voir dire to view records in the

State’s possession regarding a prospective juror’s prior theft conviction. Based upon the

rationale expressed below, we will affirm.


       Because appellant does not challenge the sufficiency of the evidence to support his

conviction, a recitation of the facts is not necessary to our disposition of this case. At the

conclusion of voir dire, the State challenged for cause a number of prospective jurors,

including venireman Sims, who the State claimed had a prior theft conviction. Appellant

objected to the trial court excusing venireman Sims until the court determined whether the

conviction was, in fact, valid. The trial court then called venireman Sims to the bench, and

engaged, in pertinent part, in the following discussion:


       The Court:    Mr. Sims, I have some information – first of all, let me ask you
                     this: May I have your date of birth?

       Mr. Sims:     7-12-47

       The Court:    I’ve got some information going back to 1965 that may indicate that
                     you had a theft charge in which you had $100.00 fine on. Do you
                     have any recollection of that?

       Mr. Sims:     Oh yes, very definitely. I was underage, and I picked up a friend of
                     mine.

       The Court:    How old were you?

       Mr. Sims:     Seventeen.
                                             ***

       The Court:    Did you pay a fine on it?

       Mr. Sims:      I don’t even remember about the fine. I just remember waking up to
                     two cops in my living room, drinking coffee with my mother.

                                              2
      The Court:    You don’t need to – an explanation is not needed. It’s just that our
                    law is so clear that any sort – even a minor theft of a piece of bubble
                    gum, if it got a conviction, it means you can’t serve on a jury.

      Mr. Sims:     Well the Judge told me that if I served probation, that he would wipe
                    that record clean. And I guess he did not do that. It’s still coming up.

      The Court:    Yeah. Well, just for your own interest, you may want to go back in
                    and try to have your record expunged. But apparently, it’s still
                    currently on there; and so, as long as it is, then you’re not eligible to
                    serve on the Jury.

      Mr. Sims:     Well, I can’t say that – it breaks my heart, because I’ve got a retail
                    operation, and I just fired someone yesterday for theft.

                                           ***

      The Court:    We will excuse Juror No. 3 [Mr. Sims].


      By his point of error, appellant contends venireman Sims denied he had a theft

conviction; therefore, the State’s withholding of the criminal history report deprived

appellant of the assistance of counsel during voir dire because his attorney was not able

to test the report’s accuracy. Continuing, appellant asserts if venireman Sims’s theft

conviction was set aside upon successful completion of probation, then he was not

absolutely disqualified. It follows, claims appellant, the trial court’s act of dismissing

venireman Sims had the effect of granting the State an extra peremptory challenge.

Appellant maintains the trial court’s error was “structural,” thus defying a harm analysis,

because of the deprivation of his right to counsel at a critical stage of the proceedings.

United States v Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 2047, 80 L.Ed.2d 657, 668

(1984). We disagree.




                                            3
       The Code of Criminal Procedure provides that a challenge for cause may be had

for a prospective juror who has been convicted of theft or any felony. Tex. Code Crim.

Proc. Ann. art. 35.16(a)(2) (Vernon 1989). A juror with a theft conviction is absolutely

disqualified and may not be empaneled even if both parties consent. Tex. Code Crim.

Proc. Ann. art. 35.19 (Vernon 1989). A trial court’s ruling on an absolute disqualification

is a question of fact that does not require undisputable certainty. Chambers v. State, 903

S.W.2d 21, 27-8 (Tex.Cr.App. 1995). We will not disturb a trial court’s ruling on an

absolute disqualification absent an abuse of discretion. Id. at 27.


       In spite of appellant’s assertion to the contrary, it is clear from the record venireman

Sims freely acknowledged his prior theft conviction. That venireman Sims believed the

judge would “wipe that record clean” following successful completion of a probated

sentence does not rise to the level of “evidence . . . which might be called conflicting.”

Hammond v. State, 799 S.W.2d 741, 744 (Tex.Cr.App. 1990), cert. denied, 501 U.S. 1259,

111 S.Ct. 2912, 115 L.Ed.2d 1076. Indeed, in light of venireman Sims’s admission that he

had a theft conviction, it was within the province of the trial court to find as an historical fact

that venireman Sims had been convicted of theft for purposes of article 35.16(a)(2). See

Frame v. State, 615 S.W.2d 766, 768 (Tex.Cr.App. 1981); see also Chambers, 903 S.W.2d

at 28 (finding trial court did not abuse its discretion in ruling a juror was absolutely

disqualified based upon juror’s own testimony that he had previous felony conviction); cf.

Hammond, 799 S.W.2d at 744 (holding in view of the absence either of an admission from

the venireman that she had not been convicted of theft, or a judgment reflecting a

conviction, it was within province of trial court to find venireman had not been convicted of


                                                4
theft). Because we find it was within the trial court’s discretion to grant the State’s

challenge for cause of venireman Sims, we fail to see how appellant’s lack of access to the

State’s criminal history information deprived him of his right to counsel. Appellant’s point

of error is overruled.


       Accordingly, the judgment is affirmed.


                                          Don H. Reavis
                                            Justice


Do not publish.




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