Opinion
Nos. 05-06-00961-CR, 05-06-00962-CR.
Opinion Filed January 2, 2007. DO NOT PUBLISH.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-74403-U, F04-74355-U.
Before Justices MORRIS, LANG, and LANG-MIERS.
MEMORANDUM OPINION.
Appellant Christopher Lamont Lawrence entered pleas of not guilty before a jury to the charged offenses of aggravated robbery and aggravated kidnapping. The jury found appellant guilty and assessed punishment at twenty years' confinement for each offense and included an additional $10,000 fine as to the robbery offense. In his sole issue on appeal, appellant argues the trial court erred by sua sponte excusing two jurors from the panel without a hearing based on information the two jurors told the court. We conclude the trial court did not err. The trial court's judgment is affirmed. See Tex. R. App. P. 43.2(a). Because the issue in this appeal is settled, we issue this memorandum opinion. See Tex. R. App. P. 47.4. After the jury was chosen, but before being sworn, the trial court excused two jurors. According to the trial court, two jurors notified the bailiff they were contacted by the defendant's mother "to give her side of the story." Thereafter, the trial court sua sponte excused the two jurors without a hearing because it was "too prejudicial." The trial court called in the next "three jurors that were eligible," excused the third, and seated the remaining two. Outside the presence of the jury, the trial court informed the parties of what had transpired, the State indicated it had no objection, and appellant objected by stating:
COURT: I went back and spoke to the other jurors to make sure that no one had been approached or talked to about this case from the defendant's side or State's side and all ten of the remaining jurors said no one had spoken to them.
DEFENSE: Was there any discussion, Judge, about whether the comments that they heard would have influenced their decision-making in this case at all?
COURT: Well, no, there wasn't but the bottom line is if someone approached two jurors — one of the State's witnesses approached two jurors about this case I would excuse them. I think it's too prejudicial regardless of whether they said it would influence their decision-making or not.
DEFENSE: Do we have any details about what was said to them?
COURT: What was said was the — what Deputy Smith informed me, the mother gave her side of the story of what happened on that day basically. I didn't go into any further questions regarding whether or not it influenced them.
At that point I found it was too prejudicial. Like I said, one of the State's witnesses approached one of the jurors regarding their side of the case, I would have done the exact same thing.
DEFENSE: I don't have any doubt about that. I guess my question is these jurors were lawfully selected. They were lawfully seated. They have not been sworn. I think it's premature to excuse them and pull in the next two jurors who we don't know what they were told or any details or whether or not it would influence their decision-making.
COURT: I'm sorry you disagree. I have made my decision.
DEFENSE: Note the defendant's objection for the record.
COURT: Noted.On appeal, appellant argues the trial court erred in sua sponte excusing the two jurors, "on its own motion without a formal challenge to their qualifications and the requisite hearing to determine whether the contact by the appellant's mother caused the two jurors to be incurably tainted." Appellant relies on legal authority which stands for the proposition that a trial court should not, on its own motion, excuse a prospective juror for cause unless the juror is absolutely disqualified from serving on a jury. Tex. Code Crim. Proc. Ann. art. 35.19 (Vernon 2006); Tex. Code Crim. Proc. Ann. art. 35.16; Green v. State, 764 S.W.2d 242 (Tex.Crim.App. 1989). However, this authority is inapplicable. The record does not reflect the action of the trial court constituted an excusal for cause based on an absolute disqualification. Appellant's only complaint on appeal is to the procedure utilized by the trial court in excusing these two jurors without a formal hearing. On this record, we do not agree the trial court erred by sua sponte excusing two jurors. Moreover, even if the trial court's action in sua sponte excusing two jurors were error, it would not require reversal. Appellant argues he was harmed by the trial court's sua sponte excusal of two jurors because this action gave the State the benefit of an additional peremptory strike, and, therefore, reversal is mandated. The jury selection tool of peremptory challenges is not one of federal constitutional dimension. See United States Martinez-Salazar, 528 U.S. 304, 120 S. Ct. 774, 779 (2000). Rather, peremptory strikes are but one means for achieving the constitutional guarantee of trial by an impartial jury. See id. In order for a non-constitutional error to merit reversal, the error must affect the substantial rights of the defendant. See Tex. R. App. P. 44.2. The defendant's substantial right is that the jurors who do serve be qualified. See Jones v. State, 982 S.W.2d 386, 393 (Tex.Crim.App. 1998). If the jurors are all qualified, then the jury is lawfully constituted, a defendant's substantial rights are not affected, and reversal is not called for. Id. at 394. At trial, appellant did not object to the qualifications of the two jurors that replaced the excused jurors. Appellant has referenced nothing in the record to demonstrate how he was harmed by the trial court's sua sponte excusal of two jurors. We decide appellant's sole issue against him. The judgment of the trial court is affirmed. See Tex. R. App. P. 43.2(a).