
In The


Court of Appeals


Ninth District of Texas at Beaumont


____________________


NO. 09-97-501 CR

____________________


TIMOTHY EARL CARROLL, Appellant


V.


THE STATE OF TEXAS, Appellee




On Appeal from the 411th District Court
Polk County, Texas

Trial Cause No. 14,572




OPINION ON REMAND
 In an unpublished opinion, the Court of Criminal Appeals reversed our decision in
Carroll v. State, 997 S.W.2d 399 (Tex. App.--Beaumont 1999), and remanded the cause
to us "for reconsideration in light of Johnson [v. State, 43 S.W.3d 1 (Tex. Crim. App.
2001)]."  Carroll v. State, No. 1789-99 (Tex. Crim. App. May 23, 2001).  In Carroll, we
found trial court error in failing to sustain appellant's challenge for cause of a certain
venireperson.  Id. at 404-05.  However, we failed to proceed to a harm analysis of the
previously-found trial error.  Before reaching any substantive issue, we must first consider
the scope of the instant remand.  
	It has been held that upon remand from the Court of Criminal Appeals, the exercise
of the reviewing function of an intermediate appellate court is limited only by its own
discretion or a valid restrictive statute.  See Adkins v. State, 764 S.W.2d 782, 784 (Tex.
Crim. App. 1988).  "Moreover, when a case is remanded to a lower appellate court, the
jurisdiction originally granted to the court by constitutional and statutory mandate is fully
restored by the order of abatement and remand."  Id.  As was stated by the Court in
Garrett v. State, 749 S.W.2d 784, 787 (Tex. Crim. App. 1988) (op. on orig. submission),
overruled on other grounds by Malik v. State, 953 S.W.2d 234, 239 (Tex. Crim. App.
1997):
	[F]or this Court to issue an "order of remand" to restrict the court of appeals
in renewed exercise of its own jurisdiction, power and authority would seem
to be an impermissible and unwarranted abridgement of constitutional grant
of same to courts of appeals by Article V, § 6, Constitution of Texas, as
implemented by Articles 4.03, 44.24 and 44.25, V.A.C.C.P.

See also McClain v. State, 730 S.W.2d 739, 741 (Tex. Crim. App. 1987); Sanchez v.
State, 32 S.W.3d 687, 694 n. 8 (Tex. App.--San Antonio 2000, pet. granted); Johnson v.
State, 975 S.W.2d 644, 646-49 (Tex. App.--El Paso 1998, pet. ref'd); Calhoun v. State,
951 S.W.2d 803, 806-07 (Tex. App.--Waco 1997, pet. ref'd); Ramirez v. State, 862
S.W.2d 648, 651 (Tex. App.--Dallas 1993, no pet.).  We find that established precedent
permits us to re-examine the sole issue before us previously, viz: "The trial court abused
its discretion in denying Appellant's challenge for cause of potential juror [W.F.] because
[W.F.] stated that he could not consider the minimum authorized punishment."  Carroll,
997 S.W.2d at 400.
	In Johnson, after recognizing the confusing positions taken in past cases on
preservation of error and harm, in the context of denials of challenges for cause, see
Johnson, 43 S.W.3d at 5 n. 6, the Court resurrects its position, first taken in 1944, that
harm is demonstrated, and error held reversible, when a defendant (1) exercises his
peremptory challenges on the venire member whom the trial court erroneously failed to
excuse for cause, (2) exhausted his peremptory challenges, (3) is denied a request for
additional peremptory challenges, and (4) identifies an objectionable juror who sat on the
case.  Wolfe v. State, 147 Tex. Crim. 62, 178 S.W.2d 274 (1944) (opinion on rehearing). 
Yet, with the clarification that Johnson provides comes the need to revisit the initial
inquiry regarding whether the trial court committed error in the first place.  We find, after
once again reviewing the voir dire proceeding, that this cause is controlled by the law as
expressed in Sadler v. State, 977 S.W.2d 140 (Tex. Crim. App. 1998).  
	Recall that appellant's basic complaint before us, as it was before the trial court, is
that venireperson W.F. was challengeable for cause as he was unable to consider the
minimum authorized punishment.  Appellant's brief sets out the pertinent portion of the
voir dire proceeding where W.F. was being questioned at the bench by both counsel for
the State and for appellant, along with the trial court.  During the initial questioning by
trial counsel, W.F. stated that he did not think he could consider the minimum punishment
for a habitual felony offender following a conviction for the underlying offense of
aggravated robbery.  The State then picked up the questioning and presented to W.F. a
series of hypothetical fact scenarios in which the prior felony convictions were for non-violent drug offenses, and the underlying aggravated robbery involved a theft of $10 from
a 70-year-old victim by verbal threat, and without the use of a weapon.  To this set of
facts, W.F. responded:  "If the offenses were mild enough, I could see where I could - -
I could at least entertain the thought of 25 years. . . .  I mean, if the prior offenses had
been nonviolent and, you know, like I said, just a joint of marijuana or something like that.
. . .  No violence involved and I didn't feel like that - - the main thing I'm going to look
at is whether I feel like that the defendant is going to be a threat to me or my family."  The
State concluded its questioning of W.F. with the following: 
	Q.[State] You are going to look at the particular facts of the robbery?

	A.[W.F.] Right.

	Q.  And the particular facts of whatever prior convictions he has had and not
just automatically say I could never, no matter what the facts were, consider
a sentence of 25 years; is that correct?

	A.  That's correct.  

	As we appreciate appellant's argument, he seems to be contending that W.F. was
challengeable for cause because he could not consider the minimum punishment of 25
years for the particular facts of appellant's case, thus exhibiting a bias against the law. 
This argument was rejected by the Court in Sadler when it observed the following:
	Jurors must be able to consider the full range of punishment for the crime as
defined by the law.  "They must be able, in a sense, to conceive both of a
situation in which the minimum penalty would be appropriate and of a
situation in which the maximum penalty would be appropriate."  Fuller v.
State, 829 S.W.2d 191, 200 (Tex.Crim.App.1992), cert. denied 508 U.S.
941, 113 S.Ct. 2418, 124 L.Ed.2d 640 (1993).  Punishment is thus a fact-bound determination.  

		Appellant argues that jurors must be willing to consider the entire
range of punishment not just for the crime itself, but for the crime as
Appellant committed it.  Appellant's argument is without merit.  The law
requires jurors to use the facts to tailor the punishment to the crime as
committed by the guilty defendant.  As such, it would be nonsensical to rule
that a juror who will use the facts to fit the punishment to the crime is
unqualified and thus challengeable for cause - - such a juror would be doing
exactly what the law requires. 

Sadler, 977 S.W.2d at 142-43.  In the instant case, the State's rehabilitative questioning
of  W.F. elicited responses indicating W.F. would indeed "tailor the punishment to the
crime as committed" by appellant.  It was therefore not error for the trial court to refuse
to remove W.F. from the venire as he was not challengeable for cause.  As no error was
committed by the trial court, no harm analysis is necessary.  The lone appellate issue is
overruled.  The judgment and the sentence of the trial court are affirmed.  
	AFFIRMED.

 
							________________________________
								RONALD L. WALKER
									Chief Justice


Submitted on November 14, 2001
Opinion Delivered April 10, 2002
Publish

Before Walker, C.J., Burgess and Gaultney, JJ.


DISSENTING OPINION

	I vigorously dissent.  Obviously I dissent to the result, see Carroll v. State, 997
S.W.2d 399 (Tex. App.--Beaumont 1999), but my real dissent is to the majority's
determination of  "the scope of the instant remand."
The Scope of the Remand

	The Texas Court of Criminal Appeals, in their unpublished opinion, (1) stated:
	. . . The court of appeals did not perform a harmless error analysis.  The
State petitioned this Court to review the court of appeals' failure to conduct
a harm analysis.
		This court recently decided that the erroneous denial of a defense
challenge for cause is subject to harmless error analysis under Rule 44.2(b)
of the Texas Rules of Appellate Procedure.  See Johnson v. State, [43
S.W.3d 1] (Tex. Crim. App. 2001).  Accordingly, we reverse the decision
of the court of appeals and remand this cause to the Court of Appeals for
reconsideration in light of Johnson. 

	Clearly the Court of Criminal Appeals agreed with our earlier majority opinion on
the issue of whether the trial court erred when it overruled the challenge for cause.  If not,
they would have adopted Chief Justice Walker's dissenting opinion, (2) found no error,
reversed this court and affirmed the trial court. (3)  Yet, they remanded this case for a harm
analysis as mandated by Johnson v. State, 43 S.W.3d 1 (Tex. Crim. App. 2001).
	In spite of this, the new majority (4) now revisits the issue of error, finds no error and
affirms the trial court.  They do this under the authority of several cases which hold a
Court of Appeals may not be restricted on remand by the Court of Criminal Appeals. 
However, there are more recent cases where the Court of Criminal Appeals has limited the
scope of a remand or actually reversed a Court of Appeals for exceeding the scope of a
remand.  In Connor v. State, 877 S.W.2d 325 (Tex. Crim. App. 1994), the court limited
the scope of the remand to the motion for new trial issue, thus precluding the Court of
Appeals from considering the restitution issue.  Id. at 328. (Baird dissenting).  In Williams
v. State, 790 S.W.2d 643, 645 (Tex. Crim. App. 1990), the Court of Criminal Appeals
reversed the Court of Appeals and remanded the case for the Court of Appeals "to decide
whether the statement in issue was made 'in furtherance of' what appellant concedes was
an ongoing conspiracy."  On remand, Williams v. State, 815 S.W.2d 743 (Tex. App.--Waco 1991), the Court of Appeals affirmed the conviction.  Thereafter in Williams v.
State, 829 S.W.2d 216, 217 (Tex. Crim. App. 1992), the Court of Criminal Appeals
reversed the Waco Court again holding the Court of Appeals' reasoning in its opinion
exceeded the scope of the remand order and finding the Court of Appeals erred in not fully
complying with the remand order.  Furthermore, in McGlothlin v. State, 848 S.W.2d 139,
141 (Tex. Crim. App. 1992), the Court of Criminal Appeals granted the State Prosecuting
Attorney's motion for rehearing in order to revise the scope of the remand.  At least one
court of appeals has specifically recognized the Court of Criminal Appeals' ability to limit
the scope of a remand, Combest v. State, 981 S.W.2d 958, 959 (Tex. App.--Austin 1998,
pet. ref'd), and two others, Waco in Calhoun v. State, 951 S.W.2d 803, 807 (Tex.
App.--Waco 1997, pet. ref'd.), and El Paso in Johnson v. State, 975 S.W.2d 644, 648-49
(Tex. App.--El Paso 1998, pet. ref'd), have recognized it, but distinguished their cases. 
Contrary to the majority, I do not believe established precedent allows this court to re-examine the issue before us previously.
	Assuming arguendo, that the remand is not restricted, there is another compelling
doctrine which should preclude our reconsideration of the complete issue - the "law of the
case" doctrine.  This doctrine has long been recognized by the Court of Criminal Appeals,
e.g. Penry v. State, 903 S.W.2d 715, 746-47 (Tex. Crim. App. 1995); Satterwhite v.
State, 858 S.W.2d 412, 429-30 (Tex. Crim. App. 1993); Ware v. State, 736 S.W.2d 700,
701 (Tex. Crim. App. 1987); and this court.  In Carroll v. State, 42 S.W.3d 129, 131
(Tex. Crim. App. 2001), the court stated :
	Under the doctrine known as "law of the case," "an appellate court's
resolution of a question of law in a previous appeal of the same case will
govern the disposition of the same issue when raised in a subsequent
appeal."  Howlett v. State, 994 S.W.2d 663, 666 (Tex.Crim.App.1999)
(citations omitted).  However, the doctrine's application is not inflexible. 
Id.  One of the circumstances in which an appellate court may reconsider its
earlier disposition of a point of law is when there has been a change in the
controlling law between the time of the first appellate determination and the
time that the case is brought on a second appeal.  See 5 Am.Jur.2d Appellate
Review § 613 (1995);  E.H. Schopler, Annotation, Erroneous Decision as
Law of the Case on Subsequent Appellate Review, 87 A.L.R.2d 271, 357-58,
1963 WL 13469 (1963 & Supp.2000); . . . .

	In Howlett v. State, 994 S.W.2d 663, 666 (Tex. Crim. App. 1999)(footnote 

omitted) the court said:

		In its most basic form the doctrine "provides that an appellate court's
resolution of a question of law in a previous appeal of the same case will
govern the disposition of the same issue when raised in a subsequent
appeal."  Law of the case is a court-made doctrine designed to promote
judicial consistency and efficiency that eliminates the need for appellate
courts to prepare opinions discussing previously resolved matters.  Ex parte
Granger, supra; LeBlanc v. State, 826 S.W.2d 640, 644
(Tex.App.--Houston [14 th Dist.] 1992, pet. ref'd).  The doctrine assures
trial courts that they can rely on the appellate court's disposition of an issue
in presiding over the case and provides an incentive for trial courts to follow
these decisions closely.  See Lee v. State, 67 Tex.Crim. 137, 148 S.W. 706,
713 (1912) (opinion on motion for rehearing) (if rule were otherwise "trial
courts would in a great measure be at sea, and would feel inclined and be
authorized to give but little weight to the decisions of the [appellate]
court.").
		The doctrine's application is not inflexible.  Ex parte Granger, 850
S.W.2d at 516.  An appellate court may reconsider its earlier disposition of
a point of law if the court determines there are "exceptional" circumstances
that mitigate against relying on its prior decision.  Id.  Where the facts and
issues are identical in a second appeal, the most common "exceptional"
circumstance is that the earlier appears to have been "clearly erroneous." 
Id.

	This court in Baggett v. State, 691 S.W.2d 779, 781-82 (Tex. App.--Beaumont
1985), rev'd on other grounds, 722 S.W.2d 700 (Tex. Crim. App. 1987), acknowledged
the validity of the doctrine and said:
	. . .This ground of error is identical to a ground of error in the first appeal
and we dealt with the question squarely in the prior opinion at page 913 of
Baggett, supra.  On this second appeal, in the state of this record, we are
met at the threshold with the well-established and thoroughly entrenched
"law of the case" doctrine.  Generally, the "law of the case" is that principle
or concept whereby, when there have been determinations of certain
questions of law made on a first or prior appeal, then that ruling or decision
will be held to govern the case or cause throughout its subsequent stages
including a retrial on a remand and a subsequent appeal.  6 Tex. Jur.3d,
Appellate Review, Sec. 901 (1980).  The doctrine should be abandoned only
if it is shown that the decision was clearly wrong and harmful.  That has not
been shown on this second appeal.  The doctrine should be departed from
only in exceptional cases.  Warren v. State, 523 S.W.2d 237
(Tex.Crim.App.1975);  Gragg v. State, 152 Tex.Cr.R. 386, 214 S.W.2d
292 (Tex.Crim.App.1948);  Vargas v. State, 107 Tex.Cr.R. 666, 298 S.W.
591 (Tex.Crim.App.1927).  
		The Appellant in this second appeal makes no additional effort or
record to demonstrate that the first opinion was clearly wrong.  We
sanguinely hold that the "law of the case" doctrine is applicable and
controlling. 

	Therefore, under the "law of the case" doctrine, the majority should be bound by
the previous opinion unless it was clearly wrong.  It was not, nor does the majority attempt
to show it was.
The Initial Substantive Issue (5)

	A venireperson who is shown to be biased as a matter of law must be excused if he
is challenged for cause.  Cordova v. State, 733 S.W.2d 175, 182 (Tex. Crim. App. 1987). 
It is left to the discretion of the trial court to initially determine whether such a bias exists
and the court's decision will be reviewed in light of all of the answers given.  Green v.
State, 840 S.W.2d 394, 405 (Tex. Crim. App. 1992), overruled on other grounds by
Trevino v. State, 991 S.W.2d 849, 853 (Tex. Crim. App. 1999); see also Faulder v. State,
745 S.W.2d 327, 339-40 (Tex. Crim. App. 1987)("If the prospective juror is not
disqualified as a matter of law, and states that he can set aside his bias against the law that
governs the punishment for a particular crime, then the trial court's refusal to sustain the
defendant's challenge for cause will be reviewed in light of all of the answers the
prospective juror gives.")
	After the attorneys completed their voir dire presentations, the judge brought two
venirepersons before the bench, Ms. C and W.F.  Ms. C first said she could not consider
the minimum punishment, she was then rehabilitated by the prosecutor and said she could
follow the law.  Nevertheless, the judge granted the challenge for cause.  W.F. first said
he could not consider the minimum punishment and he was then rehabilitated by the
prosecutor.  The judge denied this challenge for cause.  "[P]rospective jurors must be able
to accept that, for the offense in question, the minimum legal punishment will be
appropriate in some circumstances and the maximum legal punishment will be appropriate
in some circumstances.  In other words, prospective jurors must be able to keep an open
mind with respect to punishment until they hear the evidence in the case being tried."  
Johnson v. State, 982 S.W.2d 403, 406 (Tex. Crim. App. 1998).  A venireperson who
repeatedly asserts he will not follow the law, evidencing a strong conviction, will not be
rehabilitated by "ritually reciting" he will follow the evidence.  Cumbo v. State, 760
S.W.2d 251, 255-56 (Tex. Crim. App. 1988).
	I can not determine any meaningful difference between the two venirepersons.  The
judge was absolutely correct in allowing the challenge to the first and should have been
consistent and allowed the second challenge.  I believe there was an underlying reason the
second venireperson was not excused.  By the time the challenge was made to W.F., the
court had already excused four venirepersons for cause, thereby making venireperson forty
the thirty-sixth potential juror.  Therefore, had W.F. been excused, the individual
questioning would have to be reopened, at least to venireperson forty-one, and, depending
upon her answers, then to the others. (6)  Clearly, the court was concerned with going past
venireperson forty (potential juror thirty-six).  This fact is the only discernable difference
between Ms. C. and W.F.  I continue to believe the trial court erred in denying the
challenge for cause as to W.F.

The Proper Issue on Remand

	The Court of Criminal Appeals reversed and remanded the case for this court to
conduct a harm analysis in light of Johnson, 43 S.W.3d at 1.  The court in Johnson held
"that Rule 44.2(b) does not change the way that harm is demonstrated for the erroneous
denial of a challenge for cause."  Id. at 2.  Harm is demonstrated "when the appellant (1)
exercised his peremptory challenges on the venire member whom the trial court
erroneously failed to excuse for cause, (2) exhausted his peremptory challenges, (3) was
denied a request for additional peremptory challenges, and (4) identified an objectionable
juror who sat on the case."  Id. at 5-6.  The record reflects Carroll used a peremptory
challenge to remove W.F., exhausted his peremptory challenges, the trial court denied
Carroll's request for additional peremptory challenges, and Carroll identified an
objectionable juror who sat on the case.  Accordingly, Carroll's substantial rights were
harmed by the trial court's error and he should be entitled to a new trial.  
	I would sustain Carroll's point of error, reverse the judgment of the trial court and
remand for a new trial.  



                                                                                    DON BURGESS

                                                                                          Justice
Dissent Delivered
April 10, 2002
Publish











IN THE COURT OF CRIMINAL APPEALS

OF TEXAS




NO. 1789 - 99


TIMOTHY EARL CARROLL, Appellant
 
v.


THE STATE OF TEXAS




ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE NINTH COURT OF APPEALS

POLK  COUNTY



 Per Curiam.
O P I N I O N 


	A jury convicted appellant of aggravated robbery and sentenced him to confinement
for 40 years. See tex.pen.code ann. § 29.03 (a)(3)(A). On direct appeal, appellant raised
one point of error - that the trial court erred when it overruled his challenge for cause of
"potential juror William Fairbanks."  Appellant claimed that Fairbanks could not consider
						APPENDIX ONE

CARROLL-2 
the minimum range of punishment.  The court of appeals sustained this point of error,
reversed appellant's conviction and remanded the cause to the trial court.  See Carroll v.
State, 997 S.W.2d 399, 405 (Tex. App.-Beaumont 1999). The court of appeals did not
perform a harmless error analysis.  The State petitioned this Court to review the court of
appeals' failure to conduct a harm analysis.
	This Court recently decided that the erroneous denial of a defense challenge for cause
is subject to harmless error analysis under Rule 44.2(b) of the Texas Rules of Appellate
Procedure.  See Johnson v. State, No. 1353-99 (Tex. Crim. App. March 28, 2001).
Accordingly, we reverse the decision of the court of appeals and remand this cause to the
court of appeals for reconsideration in light of Johnson.

								    Per Curiam

Delivered On May 23, 2001 ,
Do Not Publish
 






					APPENDIX ONE
1. Appendix One to this opinion.
2.  See Carroll, 997 S.W.2d at 405.
3. The most efficient result of all possible options.
4. The original case was heard by Chief Justice Ronald L. Walker, Justice Don
Burgess and Justice Earl B. "Smokey" Stover.  Justice David Gaultney replaced Justice
Stover, January 1, 2001. 
5. Much of the discussion, if not all, of this issue is taken from the earlier majority
opinion. Carroll v. State, 997 S.W.2d 399, 400 (Tex. App.--Beaumont 1999).
6. This is reflected in the judge's comments as noted in the original majority opinion.
