No. 05-04-00039-CR
Opinion Filed May 27, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F03-00569-UL. Affirmed.
Before Justices MORRIS, FRANCIS, and LANG-MIERS.
LANG-MIERS, Justice.
A jury convicted appellant Mark Everett of possession of a controlled substance. After finding an enhancement allegation in appellant's indictment to be true, the jury assessed punishment at twenty years' imprisonment. In one issue, appellant contends that the trial court erred in ruling that a potential juror was absolutely disqualified from jury service due to a previous conviction. We affirm.
FACTS
Because appellant does not challenge the sufficiency of the evidence, we will only recite the facts necessary to address the issue before us. During voir dire, the State told the court it had information that potential juror Albert Ross had a previous conviction for burglary and requested that the court question Ross to make certain he had been convicted. The judge questioned Ross as follows: The Court: Come on up, Mr. Ross. I've got a question for you. This may not be you but, if it is, I need to know. I pulled up an Albert Ross, 1942. Did you have a burglary back then?
Ross: '42, I was only born. I was about — it say I was born in '42?
The Court: Have you ever had a burglary of some kind? Probation of some sort?
Ross: It was back in the early '70s. The Court: And that's fine. Did you get a probation? Ross: Probation. Yes. Yes. The Court: Back in the '70s? Ross: Yes. The Court: '70 what? Ross: '74, '75. The Court: That wouldn't have been a deferred probation, because deferred probation didn't come along until later on.
Ross: I didn't never do any time, or anything like that.
The Court: But you completed probation? Ross: Yes. Yes. Yes. The Court: And that was for burglary? Ross: Yes. The Court: Anything else? Ross: That's it. The Court: I just wanted to make sure that was you. Ross: Yes. Appellant objected to the court disqualifying Ross from serving on the jury because Ross may have been released from any disabilities resulting from his previous conviction. However, the court ruled that Ross was disqualified and excused him from jury service. Appellant contends that the trial court erred in ruling that Ross was absolutely disqualified to serve as a juror. APPLICABLE LAW
The Texas Code of Criminal Procedure provides that no juror shall be impaneled when it appears that he has been convicted of any theft or felony. Tex. Code Crim. Proc. Ann. art. 35.16 (a)(2), 35.19 (Vernon 1989). However, if a person successfully completes deferred adjudication community supervision, "a dismissal and discharge . . . may not be deemed a conviction for purposes of disqualifications or disabilities imposed by law for conviction of an offense." Tex. Code Crim. Proc. Ann. art. 42.12 § 5 (Vernon Supp. 2004-05). Additionally, in certain community supervision cases, a judge may set aside a verdict and dismiss an accusation, complaint, information, or indictment against a defendant, allowing the defendant to be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted or to which he has pleaded guilty. Id. § 20. A trial court is allowed great discretion in passing on the qualifications of a juror, and we apply an abuse of discretion standard when reviewing a trial court's ruling on an absolute disqualification. Chambers v. State, 903 S.W.2d 21, 27 (Tex.Crim.App. 1995). A trial court's ruling on an absolute disqualification is a question of fact. Id. Undisputable certainty is not required on the part of the trial court in making its determination on absolute disqualifications. Id. at 28. Even where there is conflicting evidence, a court has discretion to find facts such as would justify a challenge for cause. Hammond v. State, 799 S.W.2d 741, 744 (Tex.Crim.App. 1990); Wartley v. State, 978 S.W.2d 672, 674 (Tex.App.-Houston [14th Dist.] 1998, no pet.). Here, the State brought the court's attention to and Ross confirmed the fact that Ross had previously been convicted of burglary. No conflicting evidence was presented to show that Ross had been placed on deferred adjudication community supervision or was ever released from the disabilities resulting from his conviction. As a result, we cannot conclude that the trial court abused its discretion by ruling that Ross was absolutely disqualified from serving on a jury. NO REVERSIBLE ERROR
Even if the trial court had abused its discretion in ruling that Ross was absolutely disqualified from jury service, error in disqualifying a prospective juror is not necessarily reversible. Jones v. State, 982 S.W.2d 386, 394 (Tex.Crim.App. 1998), cert. denied, 528 U.S. 985 (1999). The erroneous excusing of a veniremember will call for reversal only if the record shows that the error deprived the defendant of a fair, impartial, and lawfully constituted jury. Id. Because the record here does not show that appellant was not tried before a fair, impartial, and lawfully constituted jury, we conclude that even if the trial court erred in dismissing Ross from jury service, the error is not reversible. CONCLUSION
Because we conclude that the trial court did not err in ruling that Ross was disqualified from jury service and that, even if it did err, the error is not reversible, we overrule appellant's sole issue. As a result, we affirm the trial court's judgment.