dissent">CLINTON, Judge,

dissenting.

Appellant’s Petition for Discretionary Review was granted on his strong showing that the unpublished opinion by the Houston (1st) Court of Appeals was in error when it found nothing had been preserved for review concerning the ruling of the trial court granting a challenge for cause against the prospective juror alluded to in the opinions of the respective courts.

The stated basis for the finding by the Court of Appeals is:

“The record does not reflect or show, 1.) that the defendant exhausted all his peremptory challenges; 2.) that a request was made of additional peremptory challenges; 3.) and that a juror was seated upon whom the defendant would have exercised a peremptory challenge.”

However, such is not the test in the situation presented here, as Payton v. State, 572 S.W.2d 677 (Tex.Cr.App.1978) explains.1

Therefore, the error committed by the Court of Appeals was in refusing to review on its merits appellant’s contention that the trial court had erred in excusing the prospective juror. In these circumstances, having granted appellant’s petition for review, we should reverse the judgment and remand the cause to the Court of Appeals for its determination of that issue, in the first instance.

I respectfully dissent.

. Harm may be shown by an accused when a qualified juror is erroneously excluded if it appears that the State has exhausted its peremptory challenges. Payton v. State, supra, at 680. That the State did in fact use all its peremptory challenges was shown in the court below by a supplemental transcript. See Martinez v. State, 621 S.W.2d 797, 799 (Tex.Cr.App.1981).

Citation profile

Relationships

How this case has been treated — in progress