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Ray JASPER
Classification: Murderer
Characteristics:
Rapper - Robbery
Number of victims: 1
Date of murder:
November 29,
1998
Date of arrest:
Same day
Date of birth:
August 25,
1980
Victim profile: David Alejandro,
33 (music recording studio
owner)
Method of murder: Stabbing
with knife
Location: Bexar County, Texas, USA
Status: Sentenced to death on February 4, 2000. Executed by
lethal injection in Texas on March 19, 2014
On
11/29/98, Jasper and two co-defendants were responsible for the
death of a 33-year old white male, which took place during a
robbery.
The victim was a musical engineer who owned a recording
studio in San Antonio and was a business partner of Jasper.
Jasper had created his own record label and had his own rap
group.
Jasper went to the recording studio of the victim. He
walked up behind the victim and grabbed him by the hair and slit
his throat. The victim was then stabbed to death.
Jasper covered
the victim with a black sheet in order to "not have to look at
him." Jasper then began loading vehicles with the equipment
inside the studio, estimated to be worth between $10,000 and
$30,000.
Jasper and his codefendants made several trips taking
the property from the studio, and upon returning to the scene of
the crime, he was observed to be suspicious, and eventually
apprehended by police.
Co-defendants
Russell, Steve
Williams, Doug
Race and Gender
of Victim
White
male
Ex-rapper put to death for
studio owner’s slaying
By Associated Press
March 19, 2014
A former San Antonio rap musician was executed
Wednesday for a knife attack and robbery more than 15 years ago
that left a recording studio owner dead.
Ray Jasper was injected with a lethal dose of
pentobarbital for the November 1998 stabbing death of 33-year-old
David Alejandro.
Before being put to death, Jasper spoke
quietly, asking his family to “take care of each other, stay
strong and faithful to God.” He also thanked his supporters and
told his daughter that he loved her, adding that she “be strong,
be positive, have a great life.”
Jasper then asked that the “Lord God almighty
in heaven Jesus Christ see my spirit.”
As the drugs started to take effect, he took a
couple of deep breaths, then began snoring — each snore less
noticeable until all movement stopped. He was pronounced dead at
6:31 p.m. CDT — 20 minutes after being given the lethal drug.
A printed statement from Jasper that was
similar to what he said as his final words was handed out after
the execution.
During his case, Jasper had acknowledged he
slit Alejandro’s throat to steal equipment from the San Antonio
studio, but he insisted a partner was responsible for Alejandro’s
fatal stab wounds.
Jasper, 33, became the third Texas prisoner
executed this year. Another is set for next week before the state
— the nation’s most active when it comes to the death penalty —
begins using a new batch of pentobarbital obtained through a
different pharmacy. Prison officials have refused requests from
The Associated Press to disclose which pharmacy is providing the
drugs, arguing that information must be kept secret to protect the
safety of its new supplier.
Lawyers for Jasper, who was black, argued
unsuccessfully to the courts that a review of juror questionnaires
that they say only became available recently showed a black
potential juror at Jasper’s San Antonio trial in 2000 was
questioned and disqualified improperly because of race.
The US Supreme Court rejected the argument
about 30 minutes before Jasper was taken to the death chamber in
Huntsville.
State attorneys argued the juror questionnaires
long had been accessible and that race was not a factor in jury
selection.
A Bexar County jury deliberated only 15 minutes
before convicting Jasper of Alejandro’s slaying. The panel then
took less than two hours to decide he should be put to death.
The Netherlands-born Jasper, whose father was
in the US Air Force, was 18 at the time of the attack on Alejandro
and had a criminal record beginning about age 15 when his family
moved from California to San Antonio.
Jasper had previous dealings with Alejandro,
who was the lead singer of a San Antonio Christian-based music
group in addition to running his recording studio.
Two other men were convicted in Alejandro’s
slaying along with Jasper. Doug Williams, now 35, was convicted
and sentenced to life in prison. Steven Russell, 34, also is
serving life after taking a plea deal.
Texas Attorney General
Media Advisory: Ray Jasper scheduled for
execution
March 14, 2014
AUSTIN – Pursuant to an order from the 187th
District Court of Bexar County, Ray Jasper is scheduled for
execution after 6 p.m. on March 19, 2014.
On Jan. 20, 2000, Jasper was sentenced to die
for the Nov. 28, 1998, robbery-related capital murder of David
Alejandro.
FACTS OF THE CASE
The Texas Court of Criminal Appeals described
the murder as follows:
David Alejandro owned and operated a music
recording studio where musicians could have their music
professionally recorded for a fee. This business required the use
of various pieces of electronic equipment such as computers,
soundboards and microphones. Jasper and some of his friends
frequently recorded their rap music at the studio. At some point,
Jasper decided to steal Alejandro’s equipment in order to make
money from its sale. Aware that Alejandro would be able to
identify him, Jasper also decided to kill Alejandro so that there
would be no witnesses. He enlisted the help of two friends to
assist in removing the heavy equipment from the studio.
On November 21, 1998, Jasper purchased large
bags from a [sporting goods] store. A week later, he and his
accomplices drove two vans to Alejandro’s studio. Jasper and one
accomplice carried concealed knives. The three had made an
appointment at the studio and spent about two hours there while
Alejandro recorded their music before they decided it was time to
kill him. Jasper slashed Alejandro’s throat from ear to ear, but
did not kill him. Jasper and one accomplice continued to attack
Alejandro until he died as a result of multiple stab wounds to his
chest and abdomen. Jasper covered the body with a sheet taken
earlier from Jasper’s bed, and the group began loading equipment
into the vans. Jasper fled on foot when an off-duty police officer
arrived to investigate the scene, but was apprehended days later
outside his home.
On December 2, 1998, Jasper confessed to police
that he had planned the crime and recruited two accomplices. His
confession describes events in detail that were later corroborated
by Jasper’s girlfriend, Christina Breton, police officers,
security guards, and physical evidence discovered by
investigators. Breton testified that several days before the
commission of the crime, Jasper had told her about his plan to
steal Alejandro's equipment and kill him.
PRIOR CRIMINAL HISTORY
Under Texas law, the rules of evidence prevent
certain prior criminal acts from being presented to a jury during
the guilt-innocence phase of the trial. However, once a defendant
is found guilty, jurors are presented with information about the
defendant’s prior criminal conduct during the second phase of the
trial – which is when they determine the defendant’s punishment.
The prosecution presented witnesses who
testified (1) Jasper had been found in possession of marijuana
while on school property, (2) Jasper was sent to an alternative
campus and later expelled, (3) on March 20, 1997, Jasper was
observed driving 62 mph in a 45 mph zone and, when a police
officer attempted to pull over the vehicle Jasper was driving
without a driver’s license, Jasper led the officer on a high speed
chase which reached speeds exceeding ninety miles per hour and
which did not end until Jasper crashed his vehicle on a set of
railroad tracks, (4) on November 23, 1998, just days before David
Alejandro’s murder, an off-duty San Antonio Police robbery
detective spotted Jasper, who appeared to be serving as a lookout
for a burglary, and when the officer approached and identified
himself as a law enforcement officer, Jasper charged, repeatedly
struck and assaulted the officer with such ferocity that the
officer felt compelled to throw his handgun away until he could
establish control over Jasper, (5) Jasper’s fingerprint was found
on the exterior of a rear window, inside the backyard, of the
residence where Jasper had been spotted by the officer Jasper
assaulted, and (6) David Alejandro was a music composer and singer
who gave many other artists a chance when they were just beginning
their careers.
PROCEDURAL HISTORY
On June 1, 1999, a Bexar County grand jury
indicted Jasper for robbery-related capital murder.
On Jan. 18, 2000, after a trial in the 187th
District Court of Bexar County, jurors found Jasper guilty of
capital murder.
On Jan. 20, 2000, after a punishment hearing,
the judge in open court sentenced Jasper to death. On Jan. 24,
2000, the district court signed an order sentencing Jasper to
death.
On Sept. 4, 2001, Jasper filed his first state
application for habeas corpus relief.
On Nov. 28, 2001, the Court of Criminal Appeals
affirmed Jasper’s conviction and sentence on appeal.
On Aug. 20, 2008, the Court of Criminal Appeals
denied Jasper’s application for habeas corpus relief.
On July 31, 2009, Jasper filed a petition for
habeas corpus relief in the federal court for the Western District
of Texas.
On Jan. 19, 2011, the federal district court
denied Jasper’s petition for habeas corpus relief.
On April 26, 2012, the Fifth Circuit affirmed
the district court’s judgment denying habeas corpus relief.
On Dec. 10, 2012, the U.S. Supreme Court denied
certiorari review.
On Oct. 17, 2013, the 187th District Court of
Bexar County signed an order scheduling Jasper’s execution to take
place on March 19, 2014.
In the Court of Criminal
Appeals of Texas
No. 73,817
Ray Jasper, Appellant v.
The State of Texas
On Direct Appeal from Bexar County
Meyers, J.,
delivered the opinion of the Court, joined by Keller,
P.J., Price, Johnson, Holcomb, and Cochran J.J. Womack
and Keasler, J.J., concur. Hervey, J., not
participating.
O P I N I
O N
Appellant was convicted in January
2000 of capital murder. Tex. Pen. Code Ann. § 19.03(a).
Pursuant to the jury's answers to the special issues set forth in
Tex. Code Crim. Proc. Ann. art. 37.071 §§ 2(b) and 2(e), the trial
court sentenced appellant to death. Art. 37.071 § 2(g).
(1)
Direct appeal to this Court is automatic. Art. 37.071 § 2(h).
Appellant raises five points of error including a
challenge to the sufficiency of the evidence supporting the jury's
finding that appellant would be a continuing threat to society.
See Article 37.071 § 2(b). The sufficiency point will be
addressed first. We affirm.
David Alejandro owned and operated a
music recording studio where musicians could have their music
professionally recorded for a fee. This business required the use
of various pieces of electronic equipment such as computers,
soundboards and microphones. Appellant and some of his friends
frequently recorded their rap music at the studio. At some point,
appellant decided to steal Alejandro's equipment in order to make
money from its sale. Aware that Alejandro would be able to
identify him, appellant also decided to kill Alejandro so that
there would be no witnesses. He enlisted the help of two friends
to assist in removing the heavy equipment from the studio.
On November
21, 1998, appellant purchased large bags from an Academy store. A
week later, he and his accomplices drove two vans to Alejandro's
studio. Appellant and one accomplice carried concealed knives. The
three had made an appointment at the studio and spent about two
hours there while Alejandro recorded their music before they
decided it was time to kill him. Appellant slashed Alejandro's
throat from ear to ear, but did not kill him. Appellant and one
accomplice continued to attack Alejandro until he died as a result
of multiple stab wounds to his chest and abdomen. Appellant
covered the body with a sheet taken earlier from appellant's bed,
and the group began loading equipment into the vans. Appellant
fled on foot when an off-duty police officer arrived to
investigate the scene, but was apprehended days later outside his
home.
On December
2, 1998, appellant confessed to police that he had planned the
crime and recruited two accomplices. His confession describes
events in detail that were later corroborated by appellant's
girlfriend, Christina Breton, police officers, security guards,
and physical evidence discovered by investigators. Breton
testified that several days before the commission of the crime,
appellant had told her about his plan to steal Alejandro's
equipment and kill him.
During the
punishment phase of the trial, the State introduced evidence of
appellant's criminal history and bad acts, beginning at age
fifteen, including offenses and bad acts such as theft of a
bicycle, drug possession, attempted burglary, and an incident of
violence against an off-duty police officer.
In his
third point of error, appellant claims the evidence presented was
legally insufficient to support the jury's finding that he would
constitute a continuing threat to society. See Art.
37.071 § 2(b)(1). The proper standard when reviewing sufficiency
of the evidence at punishment requires the court to look at the
evidence in the light most favorable to the verdict and determine
whether any rational trier of fact could have believed beyond a
reasonable doubt that appellant would probably commit criminal
acts of violence that would constitute a continuing threat to
society. Jackson v. Virginia, 443 U.S. 307 (1979);
Allridge v. State, 850 S.W.2d 471 (Tex. Crim. App. 1991),
cert. denied, 510 U.S. 831 (1993). We have also held that the
facts of the crime alone can be sufficient to support an
affirmative finding to the special issue. Allridge, 850
S.W.2d at 488. A jury may infer future dangerousness from the
brutality and depravity of the crime committed by a criminal
defendant. Trevino v. State, 991 S.W.2d 849, 854 (Tex.
Crim. App. 1999).
The facts
of this crime were brutal and demonstrated calculated deliberation.
Appellant planned well in advance the stabbing murder of someone
he would later describe as "one of the nicest people [he] ever met
in [his] life." He allowed Alejandro to assist him with recording
for two hours, knowing he was about to kill him. As Alejandro sat
unaware at the soundboard mixing a track for appellant, appellant
pulled his head back and, taking a kitchen knife from his jacket,
slit his throat from ear to ear. When that wound did not kill him,
one of appellant's accomplices joined the attack until Alejandro
was dead. Alejandro suffered twenty-five stab wounds. Appellant
quickly loaded equipment into the vans and instructed one stunned
accomplice to hurry up and help.
In addition
to the facts of the crime itself, evidence adduced at trial of
prior criminal history and lack of remorse support the jury's
finding. Appellant's criminal history included incidents beginning
at the age of fifteen, when he stole a bicycle. He was expelled
from school for possession of marijuana and expelled from
alternative school. More recently, he attempted a residential
burglary and attacked the off-duty police officer who attempted to
detain him and also attempted to evade police at a traffic stop,
leading them on a high-speed chase.
The
evidence introduced by the State at trial shows a pattern of
escalating criminal activity and an increasing proclivity to break
laws posing threats to the safety of others. Furthermore, the
evidence showed a lack of remorse. Immediately after killing
Alejandro, appellant began loading the vans. At the punishment
phase of the trial, when asked if he had anything to say to
Alejandro's family, appellant replied that he wanted the family to
know that he did not kill Alejandro because, according to the
autopsy, the only wound he claims to have been inflicted by his
hand (slicing the victim's throat, as opposed to the twenty-five
stab wounds), was not enough to kill him.
Based on
the facts of the offense and other evidence of escalating criminal
activity and lack of remorse, a rational jury could have found
beyond a reasonable doubt that appellant would continue to be a
threat to society. Accordingly, we hold the evidence legally
sufficient to support the jury's affirmative answer to the future
dangerousness special issue. Point of error three is overruled.
In point of error one, appellant claims the trial court reversibly
erred in failing to rule that appellant was married to a key state
witness, Christina Breton. Facts adduced at trial showed that
Breton had been living with appellant at his parents' home since
the age of fifteen and that the two had a child together. While
there has been no marriage ceremony, appellant claims he and
Breton were informally married at the time of her testimony. If
appellant and Breton were married, Texas Rule of Evidence 504,
Husband-Wife Privileges, would have been applicable.
(2)
The existence of an informal marriage may be proven in a judicial
proceeding one of two ways. There can be a showing that a
declaration of marriage has been signed. If there is no
declaration, there must be evidence that the man and woman first
agreed to be married and then lived together in Texas as husband
and wife while representing to others that they were married. Tex.
Fam. Code § 2.401 (a)(1)(2) (Vernon 1998).
(3) In a hearing
outside the presence of the jury, appellant's trial attorney
attempted to prove the latter. At the end of the hearing, the
trial judge informed appellant that he thought all the evidence
had shown was an agreement to be married in the future. Breton was
subsequently called by the State to testify.
In order to determine the appropriate standard of review to apply
when reviewing a trial court's ruling involving "mixed questions
of law and fact," it is important to determine whether or not the
trial court's resolution of those questions turns on an evaluation
of credibility and demeanor. Guzman v. State, 955 S.W.2d
85, 89 (Tex. Crim. App. 1997). If the resolution turns on an
evaluation of credibility and demeanor, then appellate courts
should afford almost total deference to the trial court's finding
of fact and view the evidence in the light most favorable to the
trial court's ruling. When, however, the ultimate resolution of "mixed
questions of law and fact" does not turn on an evaluation of
credibility and demeanor, then appellate courts may decide to
review the trial court's decisions de novo. Id. Since it
is apparent from the record that in the present case the trial
court reached its decision by evaluating the credibility of the
witnesses, we will view the evidence in the light most favorable
to the court's ruling. See id.
Four witnesses were called by appellant to testify about the
alleged informal marriage between appellant and Breton. The
witnesses at the hearing provided contradictory testimony. For
example, although Breton testified that she and appellant held
themselves out as husband and wife, she also referred to appellant
as her boyfriend. Reverend Patterson, appellant's family pastor,
was also called to the stand. Like Breton, Reverend Patterson
provided conflicting testimony. Upon questioning by appellant's
attorney, Reverend Patterson testified that appellant and Breton
held themselves out as being husband and wife. However, he also
stated that he considered them to be a couple with intentions of
getting married. The third witness called to the stand,
appellant's father, was also unclear as to the status of appellant
and Breton. On one hand he would refer to Breton as appellant's "soon-to-be
wife" but also stated that he considered Breton to have already
been his son's wife. The last witness to be called by appellant's
attorney was appellant. On direct-examination by his attorney,
appellant testified that he considered Breton to be his wife and
that he held her out to be his wife to his family and friends.
However, during cross-examination, the State produced a bank
document dated September 24, 1998, on which appellant referred to
Breton as his girlfriend.
After
appellant finished questioning his witnesses, the State called
appellant's mother to the stand. As with the prior witnesses, her
testimony did little to establish whether or not appellant and
Breton were informally married. At the conclusion of the hearing,
the trial judge ruled that he did not believe the testimony that
appellant and Breton held themselves out as husband and wife.
Viewing the
evidence in the light most favorable to the trial court's ruling,
we agree that the testimony failed to establish that an informal
marriage existed between appellant and Breton. Point of error
number one is overruled.
In
appellant's second point of error, he claims his right to a fair
trial by an impartial jury was violated by comments of the trial
judge. Appellant did not object, but it is the province of this
Court to "take notice of fundamental errors affecting substantial
rights although they were not presented to the court," pursuant to
Texas Rule of Evidence 103(d).
Appellant
specifically objects to the following two exchanges during trial.
In the first, appellant cross-examined a twelve-year-old witness
with respect to the witness's identification of appellant. In his
statement, the witness said he saw two men who were both six feet
tall. Appellant was asked to stand, and the witness admitted that
he only looked about five-nine or five-ten.
Defense
counsel: And when [appellant] stood up, you said that he looked to
be like five-eight or five-nine. You were pretty sure that he was
not, in fact, six feet tall -
Court: He
said five-nine, five-ten, but go ahead.
Defense
counsel: Five-eight, five-nine, five-ten. But you're pretty sure
that he is not six feet tall; is that correct?
Witness: He
looked like he was pretty tall at the time.
Defense
counsel: If that was in fact him. It could have been -
Witness:
Because my cousin is like around six feet tall, and my brother
too, and he looked the same size as my brother.
Defense
counsel: Okay. Okay. As you look at this picture here, does that
appear to fairly and accurately represent the Defendant?
(Exhibit
proffered to witness).
Witness:
Does it look -
Court: Come
on, Mr. Reece. Knock it off.
State: I
object.
Court:
Ladies and gentlemen of the jury, step outside.
The
photograph appellant had shown to the witness was not one of
appellant, but of another man indicted for his participation in
the same crime. The second exchange occurred during cross-examination
of a later witness.
Defense
counsel: Were your conversations with [the State's attorney], were
those statements put into written form, to your knowledge?
Witness: I
believe so.
Defense
counsel: And do you have a copy of those with you?
Witness: No.
Defense
counsel: Judge, I request the State to provide a copy if they have
a written statement.
Court: I
think he told you that they didn't have one.
Defense
counsel: I think she indicated that the State -
Court:
Ladies and gentlemen of the jury, step outside. If you want to put
[the State's attorney] on the stand, we'll be glad to do it.
State: So
would I.
(Jury
excused).
State's
counsel was sworn in and appellant questioned him. When the jury
returned, the judge told them, "there's no statement from this
witness that have [sic] been reduced to writing."
In Blue
v. State, 41 S.W.3d 129, 132 (Tex. Crim. App. 2000)(plurality op.),
a plurality of the Court held that a trial judge's comments "which
tainted [the defendant's] presumption of innocence in front of the
venire, were fundamental error of constitutional dimension and
required no objection." Even if we were bound to follow that
plurality opinion, the first interchange of which appellant
complains does not rise to this level. It is not improper for a
trial judge to interject in order to correct a misstatement or
misrepresentation of previously admitted testimony. Further, a
trial judge's irritation at the defense attorney does not
translate to an indication as to the judge's views about the
defendant's guilt or innocence.
The second
episode to which appellant objects also lacks those elements that
would prejudice the jury to the degree discussed in Blue.
A trial judge has broad discretion in maintaining control and
expediting the trial. These comments were aimed at clearing up a
point of confusion. None of the trial judge's comments rose to
such a level as to bear on the presumption of innocence or vitiate
the impartiality of the jury. Point of error two is overruled.
In his
fourth point of error, appellant claims the trial judge reversibly
erred in failing to grant appellant's Batson challenge to
the State's striking of one venireperson. See Batson v.
Kentucky, 476 U.S. 79.
The Equal
Protection Clause of the Fourteenth Amendment to the United States
Constitution prohibits race-based jury selection. Batson,
supra. A Batson challenge proceeds by the following
steps: First, the defendant makes a prima facie case that a
venireperson was excluded on the basis of race. Then, the
prosecution must come forth with race-neutral reasons for
exercising the peremptory challenge. The defendant has the
opportunity to rebut those reasons. The burden of persuasion
remains with the defendant. Finally, the judge rules on whether
the neutral reasons given for the peremptory challenge were
contrived to conceal racially discriminatory intent. Keeton v.
State, 749 S.W.2d 861, 868 (Tex. Crim. App.1988).
In the
instant case, the State presented various facially race-neutral
reasons for exercising its peremptory challenge against the
venireperson in question. Appellant claims that the trial court's
determination that those reasons were sufficient should be
overturned. Because a trial court is in a unique position to make
such a determination, the judge's decision is accorded great
deference and will not be overturned unless it is clearly
erroneous. Ladd v. State, 3 S.W.3d 547, 563 (Tex. Crim.
App. 1999), cert. denied, 529 U.S. 1070 (2000).
During voir
dire examination, the venireperson responded to questions from the
prosecutor that he could not "play the role of God" or "send
nobody [sic], you know, to death." When asked if he could answer
the special issues in such a way as to dictate the death penalty,
he replied, "I don't believe I can, but if I have to, I can make a
decision." The prosecutor cited this response as one reason for
his peremptory challenge. The fact that a venireperson vacillates
as to whether or not he or she is capable of imposing the death
penalty despite personal beliefs is a valid and neutral reason to
strike that person. See id.
Furthermore,
a number of answers to questions in the venireperson's written
questionnaire indicated that he would require the State to prove a
criminal history, and stated his belief that the death penalty is
misused and used too often, is never justified, and is not an
acceptable method for dealing with crime. Although appellant was
able to rehabilitate him to some extent during voir dire
examination, the venireperson continued to qualify his answers,
and the prosecutor testified that he noticed mannerisms
demonstrating uncertainty with some answers elicited by defense
counsel. Numerous written answers in the pre-voir dire
questionnaire indicating a bias against the imposition of the
death penalty can constitute a valid reason to exercise a
peremptory challenge. See Adanandus v. State, 866 S.W.2d
210, 224 (Tex. Crim. App. 1993), cert. denied, 510 U.S.
1215 (1994).
The trial
court's determination is accorded great deference and will not be
overturned on appeal unless it is clearly erroneous. See
Chamberlain v. State, 998 S.W.2d 230, 236 (Tex. Crim. App.
1999), cert. denied, 528 U.S. 1082 (2000). The record
supports the prosecutor's reasons for exercising a peremptory
challenge against the venireperson in question. After viewing the
evidence in the light most favorable to the trial court's ruling,
we hold that the finding was not clearly erroneous. Point of error
four is overruled.
In his fifth point of error,
appellant claims the trial court reversibly erred in conducting a
portion of the trial in appellant's absence. The record of the
voir dire examination in the instant case begins with the trial
court informing the prospective jurors that they "have been
summoned for a capital murder case."
Following a
general discussion of the voir dire process, the court proceeded
with statutory exemptions, excusing two potential jurors.
Appellant and his counsel entered the courtroom immediately
thereafter, at which time the trial court reminded the potential
jurors that this was a capital murder case, and introduced
appellant and all of the attorneys. Appellant claims the trial
court erred by conducting this portion of the voir dire in his
absence, and claims he was harmed because "the veniremen were
exempted from jury service for exemptions that did not track the
standard legal exemptions and since the attorneys for both sides
did not assent to the exemptions of the veniremen in the absence
of Appellant," citing Bath v. State, 951 S.W.2d 11 (Tex.
App.-Corpus Christi, pet. ref'd), cert. denied, 525 U.S.
829 (1998).
Generally,
when prospective jurors are initially summoned, they are assembled
in a general jury pool or general assembly. George E. Dix, Robert
O. Dawson, 43 Texas Practice § 35.13 (2001). Members of the
general assembly are qualified on their ability to serve and
exemptions and excuses are heard and ruled on by the judge
presiding over the general assembly. Prospective jurors who are
not disqualified, exempt, or excused are divided into trial panels
and sent to the individual courts trying the cases. At that point,
attorney voir dire will result in the jury that will ultimately
hear the case. Id. The general assembly portion of jury
selection is not considered part of "the trial" and therefore the
accused is not entitled to be present. Moore v. State,
999 S.W.2d 385, 399 (Tex. Crim. App. 1999), cert. denied,
530 S.W.2d 1216 (2000); Chambers v. State, 903 S.W.2d 21,
31 (Tex. Crim. App. 1995). We have stated that the general
assembly is not part of a defendant's particular trial because "prospective
jurors who are summoned to a general assembly have not been
assigned to any particular case [and] [t]he judge presiding over
the general assembly is assigned for that purpose only at that
time and has no given case in mind." Chambers, 903 S.W.2d
at 31.
In the
instant case, however, the trial judge assigned to preside over
appellant's trial appears to have functioned as a general assembly
judge over prospective jurors already assigned to appellant's
specific case. Before addressing qualifications and excuses,
the judge told the prospective jurors that they had been summoned
for a capital murder case, although he did not introduce appellant
until after ruling on the qualifications and excuses. We will
therefore assume that appellant's trial had begun at the time of
the exemptions, excuses and qualifications, and therefore we will
assume that to be the case for purposes of addressing this point
of error.
Article
33.03 requires, in all felony prosecutions, the personal presence
of the defendant "at the trial" unless he voluntarily absents
himself after pleading to the indictment or information or after
the jury has been selected. Moreover, we have recognized that
under the Sixth Amendment to the United States Constitution and
Article I, § 10 of the Bill of Rights in the Constitution of
Texas, "the scope of the right of confrontation is the absolute
requirement that a criminal defendant who is threatened with loss
of liberty be physically present at all phases of proceedings
against him . . .." Miller v. State, 692 S.W.2d 88, 90 (Tex.
Crim. App. 1985)(quoting Baltierra v. State, 586 S.W.2d
553 (Tex. Crim. App.1979)).
Thus, it was
statutory and constitutional error for the trial court to proceed
with the excuses and qualifications in appellant's absence. The
question is one of harm. Because we are faced with non-constitutional
and constitutional error, we will apply the standard of harm for
constitutional error. Tex. R. App. Proc. 44.2(a). In the case of
constitutional error, we need not reverse appellant's conviction
if we determine that the error was harmless beyond a reasonable
doubt. Chapman v. California, 386 U.S. 18 (1967); Tex. R.
App. Proc. 44.2(a). If there is a reasonable likelihood that the
error materially affected the jury's deliberations, then the error
was not harmless beyond a reasonable doubt. Appellant points to
two prospective jurors who were excused, and argues he was harmed
because they were not excused for "standard legal exemptions under
Section 62.106 of the Texas Government Code."
A court is not restricted to
excusing prospective jurors for enumerated exemptions only.
Exemptions are distinguishable from excuses.
(4)
Article 35.03 provides that "the court shall hear and determine
excuses offered for not serving as a juror, and if the court deems
the excuse sufficient, the court shall discharge the juror or
postpone the juror's service to a date specified by the court." We
have repeatedly held that a trial court has broad discretion to
excuse prospective jurors for good reason under article 35.03.
Wright v. State, 28 S.W.3d 526, 533 (Tex. Crim. App. 2000)(citing
Butler v. State, 830 S.W.2d 125 (Tex. Crim. App.1992)), cert.
denied, 121 S.Ct. (2001); Black v. State, 26 S.W.3d
895, 899 (Tex. Crim. App. 2000); Fuentes v. State, 991
S.W.2d 267, 277-78 (Tex. Crim. App.), cert. denied, 528
U.S. 1026 (1999); see also Tex. Gov't. Code § 62.110. The
only statutory restriction on excuses is that an excuse cannot be
given for "an economic reason" without the presence and approval
of both parties. Tex. Gov't. Code § 62.110(c).
The first prospective juror was
excused because the trial court determined she was a "caretaker."
(5)
The second prospective juror, who was pregnant, was excused upon
explaining that she was within six weeks of her due date. Neither
of these excuses was for an economic reason. Even if appellant had
been present and objected to the excusals, the trial court would
have been well within its discretion in overruling the objections.
Thus, we are confident in concluding that appellant's absence at
the time of these excuses was harmless beyond a reasonable doubt.
Point of error five is overruled.
The judgment of the trial court is affirmed.
Delivered November 28, 2001
Publish
*****
1. Unless otherwise
indicated all future references to Articles refer to Texas Code of
Criminal Procedure.
2.
Under Rule 504 (a), Confidential Communication Privilege,
an accused has a privilege "to refuse to disclose and to prevent
another from disclosing confidential communication made to the
person's spouse while they were married." Rule 504(b),
Privilege Not to Testify in Criminal Case, provides that "[i]n
a criminal case, the spouse of the accused has a privilege not to
be called as a witness for the state." Tex. R. Evid. 504 (a)(b).
3. Section 2.401, Proof
of Informal Marriage, provides:
(a) In a
judicial, administrative, or other proceeding, the marriage of a
man and woman may be proved by evidence that:
(1) a
declaration of their marriage has been signed as provided by this
subchapter; or
(2) the man
and woman agreed to be married and after the agreement they lived
together in
this state
as husband and wife and there represented to others that they were
married.
(b) If a
proceeding in which a marriage is to be proved as provided by
Subsection (a)(2) is not commenced before the second anniversary
of the date on which the parties separated and ceased living
together, it is rebuttably presumed that the parties did not enter
into an agreement to be married.
(c) A person
under 18 years of age may not:
(1) be a
party to an informal marriage; or
(2) execute
a declaration of informal marriage under Section 2.402.
It should be noted that although it was not
argued at the hearing, both appellant and the State address the
issue in their briefs of whether or not Ms. Breton in fact
possessed the legal capacity to enter into an informal marriage.
Ms. Breton testified that she did not turn eighteen until after
the date appellant was arrested and incarcerated for this offense.
Since we are upholding the trial court's ruling in regards to
§2.401 (a)(2), further analysis under subsection (c) is
unnecessary.
4. Government Code section
62.106 lists exemptions from jury service. Exemptions are
enumerated reasons a prospective juror is exempt from service as a
matter of law. Excuses are not specifically enumerated, but are
considered on a case by case basis within the broad discretion of
the court. Compare Tex. Crim. Proc. Code art. 35.03
(excuses); Tex. Gov't. Code § 62.110 (excuses) with Tex.
Crim. Proc. Code art. 35.04 (exemptions); Tex. Gov't. Code §
62.106 (exemptions).
5. It is not completely
clear from the record whether the caretaker was the prospective
juror or whether the caretaker was appearing on behalf of the
patient, who might have been the prospective juror. Following is
the brief exchange:
(Venireperson
comes forward)
Venireperson:
I'm a caretaker for him and he's starting surgery. He has to go
for two weeks every day [sic]. This is an excuse for him,
doctor's excuse.
(Emphasis
added).
Court: What
number are you?
Venireperson:
40.
Court: I'm
excusing 40. She's a caretaker. Gloria Martinez is her name.
