11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Mike Sanchez Salazar a/k/a Miguel Salazar

Appellant

Vs.                   No. 11-01-00289-CR B Appeal from Taylor County

State of Texas

Appellee

A jury convicted Mike Sanchez Salazar a/k/a Miguel Salazar of aggravated robbery.  After a presentence investigation, the trial court sentenced him to confinement for a term of 25 years.  We reverse and remand.

                                                                  Issues Presented

Appellant presents three issues for appellate review.  The first issue is dispositive, and it  reads in full as shown:

The trial Court erred in overruling Appellant=s challenge for cause of a prospective juror who acknowledged prejudice against the Appellant.

TEX.R.APP.P. 47.1 provides that our opinions are to be Aas brief as practical@ and indicates that the opinions need not discuss issues unless they are Anecessary to final disposition of the appeal.@^[1]

                                                               Challenge for Cause

The record shows that there were 32 members of the venire who were examined during the trial of this case, that 3 venire members were excused for cause, and that appellant=s counsel moved to exclude Venireperson No. 1,  Mary Kathryn Fair,  for cause.  The record also shows the following discussion outside the presence of the venire members:

THE COURT:  Let=s get on the record for just a minute.  I=ve talked with the attorneys up here.  We=ve agreed to excuse Juror 16, Barry Joe Overton; Juror 30, who is Emily Autumn Jones; and Juror 32, who is Gabrella Johnson Thomas.  Is that satisfactory, gentlemen, to do that?

[DEFENSE COUNSEL]:  Yes, Your Honor, with respect to all three of those we would agree....Your Honor, the only other one to whom we would object is Juror No. 1 [Ms. Fair], indicating that because of his tattoos she could not afford him the presumption of innocence.

THE COURT:  Any objection to number one?

[PROSECUTOR]:  Yes, sir.  I think when I questioned her in regards to her first question - - they go back on the tattoos, but - - if she could listen to all the evidence and come to her own decision based on that, she said she could.

THE COURT:  Well, if a juror says they=re prejudiced against a person who has tattoos, does that in and of itself disqualify them if they - - once they say that?

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THE COURT:  State wants me to overrule that challenge for cause?

[PROSECUTOR]:  Yes, sir.  I think she qualified herself.

THE COURT:  All right.  Let the record reflect the State believes I should not grant that challenge for cause and so I=m not going to.  I overrule that challenge.  That=s on number one, Ms. Fair, F-a-i-r.  All right.  Everything else in good shape.

[DEFENSE COUNSEL]:  Your Honor, we would request one additional peremptory strike to take the place of the strike which we=ll be forced to use on Ms. Fair.

THE COURT:  State object to that?

[PROSECUTOR]:  Yes, sir.

THE COURT:  Okay.  Your request is denied.

The record shows that appellant=s counsel used his 10 peremptory challenges to strike the following members of the venire: Venireperson No. 1 (Mary Kathryn Fair) and Venirepersons Nos. 6, 9, 10, 13, 14, 17, 18, 34, and 35.  Since 3 of the original 36 members of the venire had been excused by agreement, the first 32 remaining members of the venire included Venirepersons Nos. 34 and 35.  All of them were potential members of the jury unless peremptorily challenged by the State or appellant.  After the recess for making the peremptory strikes, the record shows the following proceedings in open court but outside the presence of the venire:

THE COURT:  Okay.  The parties have made their strikes.  Mr. Johnson, the jury panel is not back in the courtroom.  You said you had a matter you needed to put on the record before we have the jury panel brought back in?

[DEFENSE COUNSEL]:  Yes, Your Honor.  For the record, both sides have made their strikes.  We once again would request that we be granted an extra peremptory challenge in lieu of the challenge which we were required to use on Juror No. 1, Ms. Mary Fair.  For the reasons previously stated we believe she should have been struck for cause but we were required to use a peremptory strike on that.  We were required to accept Juror No. 7, which is Mr. Barry Hendricks, whom we would have used the strike on had we been granted an additional strike, because he has been the victim of burglaries on five separate occasions; we would have used that strike on him.  And so we would request another strike.

THE COURT:  The State still object --

[PROSECUTOR]:  The State still objects, Your Honor.^[2]

THE COURT:  All right.  I overrule the request.  (Emphasis added)

During the State=s voir dire examination of the venire, the prosecutor asked if any of them had family or friends in law enforcement.  Venireperson Fair raised her hand.  When the prosecutor asked her, she said that she was Apretty good friends with assistant chief Dye=s wife, Ann Dye.@  She also said that her husband used to work with Chief Dye and that she had Aknown them for twenty-plus years.@  Later in the State=s voir dire examination of the venire, the prosecutor asked Venireperson Fair if she thought that knowing the assistant police chief=s wife would prevent her Afrom being fair and unbiased@ as a juror.  Her answer was: ANot because of that friendship.  I just have faith in the police department.@ 

During the examination of the venire by appellant=s counsel, Venireperson Fair indicated that she knew what a Abeer run@ was.  She said that her son had worked in a convenience store and that a Abeer run@ is where someone will run into the store, grab the beer out of the cooler, and run out of the store without paying for it.  Later, appellant=s counsel asked the venire to let him know if there was anyone who, if they had his job, would not want someone like them on the jury, and he had this discussion with Venireperson Fair:

[DEFENSE COUNSEL]:  Would you want you on the jury?  No?  Okay.  Is there anything more than what you=ve already told us that would allow us to understand that?

VENIREPERSON FAIR:  I probably am a little prejudiced.  (Emphasis added)

Venireperson Fair then explained that her prejudice was against Atattoos,@ and the record shows that appellant has tattoos.  There was no further examination of this venireperson by either attorney or by the trial court to determine whether she would be able to set that prejudice aside and not consider the tattoos for any purpose against appellant.

                                                               Standard of Review

TEX. CODE CRIM. PRO. ANN. art. 35.16 (Vernon 1989 & Supp. 2001) lists the reasons which authorize a Achallenge for cause@ which may be made by either the State or the defense.  Article 35.16(a)(9) provides that a particular juror is incapable or unfit to serve on the jury if he or she Ahas a bias or prejudice in favor of or against the defendant.@ 

The Court of Criminal Appeals recently discussed the problem which is now before us in Johnson v. State, 43 S.W.3d 1 (Tex.Cr.App. 2001).  Relevant portions of the majority opinion read as shown:

Harm for the erroneous denial of a challenge for cause is determined by the standard in Rule of Appellate Procedure 44.2(b)....Today we hold that Rule 44.2(b) does not change the way that harm is demonstrated for the erroneous denial of a challenge for cause.

                                                           *    *    *

The appropriate standard of harm is to disregard an error unless a substantial right has been affected.  Tex. Rule App. P. 44.2(b).  We have held that a substantial right is affected when the error has a substantial and injurious effect or influence in determining the jury=s verdict.  

                                                           *    *    *

We agree with the appellant that no burden to show harm should be placed on the defendant who appeals....Rather, it is the duty of the reviewing court to assess harm from the context of the error.

                                                           *    *    *

Since 1944, harm has been demonstrated, and the error held reversible, 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.

                                                    This Court=s Ruling

Issue No. 1 is sustained.  The other two issues need not be discussed.  See Rule 47.1.  The judgment of the trial court is reversed, and the cause is remanded.

BOB DICKENSON

SENIOR JUSTICE

December 20, 2001

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of:  Arnot, C.J., and

McCall, J., and Dickenson, S.J.^[3]