Orlando Javier PEREZ, Appellant, v. The STATE of Texas, 11 S.W.3d 218

OPINION JOHNSON, J., delivered the opinion of the court, in which MEYERS, MANSFIELD, PRICE and WOMACK, JJ., joined. Appellant Javier Perez was convicted of aggravated assault with a firearm and sentenced to fifteen years confinement. He filed a motion for new trial, alleging that a disqualified juror had sat on his panel.

At a hearing pursuant to his motion for new trial, appellant and the state entered into a stipulation of evidence that one of the jurors at appellant’s trial had a final conviction for felony driving while intoxicated and that this information was not discovered until after rendition of the verdict. The trial court overruled appellant’s motion for new trial on the basis that appellant had made no showing of “significant harm,” as mandated by Tex.Code CRiM. PROC. art. 44.46(2). COURT OF APPEALS The Corpus Christi Court of Appeals reversed and remanded.

The basis for its ruling was that, as applied to appellant, art. 44.46 was in conflict with Tex. Const. art. XVI, § 2. Art. XVI, § 2 provides that Laws shall be made to exclude from office, serving on juries, and from the right of suffrage, those who may have been or shall hereafter be convicted of bribery, perjury, forgery, or other high crimes.

The privilege of free suffrage shall be protected by laws regulating elections and prohibiting under adequate penalties all undue influence therein from power, bribery, tumult or other improper practice. (Emphasis added.) Art. 44.46 provides that A conviction in a criminal case may be reversed on appeal on the ground that a juror in the case was absolutely disqualified from service under

Article 85.19 of this code only if: (1) the defendant raises the disqualification before the verdict is entered; or (2) the disqualification was not discovered or brought to the attention of the trial court until after the verdict was entered and the defendant makes a showing of significant harm by the service of the disqualified juror. Art. 35.19 provides that “[n]o juror shall be impaneled when it appears that he is subject to the second, third or fourth cause of challenge in

Article 35.16, though both parties may consent.” Art. 35.16 provides in relevant part: (

a) A challenge for cause is an objection made to a particular juror, alleging some fact which renders him incapable or unfit to serve on the jury. A challenge for cause may be made by either the state or the defense for any one of the following reasons: 2. That he has been convicted of theft or any felony; 3. That he is under indictment or other legal accusation for theft or any felony; 4. That he is insane; (Emphasis added.) The court found that the purpose art. XVI, § 2 “is to prohibit felons from serving on juries.” Perez v. State, 973 S.W.2d 759, 762 (Tex.App.—Corpus Christi 1998).

Therefore, it held that art. 44.46 was unconstitutional as applied to appellant because “through its application, he failed to receive a fair and just trial before a jury composed of twelve qualified persons.” Id. Justice Dorsey dissented. Id. at 762-64 (Dorsey, J., dissenting). We granted the District Attorney’s petition for discretionary review on the following ground: As applied to appellant’s ease, does TexCode Grim. Proc. art. 44.46 violate Tex. Const, art. XVI, § 2? We also granted the State Prosecuting Attorney’s petition for discretionary review on the following ground: Does TexCode Crim.

Proc. art. 44.46 violate Tex Const, art. XVI, § 2? ANALYSIS In its determination that, as applied to appellant, art. 44.46 conflicted with art. XVI, § 2, the Court of Appeals first determined that the phrase “high crimes,” as it appears in art. XVI, § 2, refers to felonies. Perez, 973 S.W.2d at 760 n. 3. In his dissent, Justice Dorsey disputed that definition. He argued that the enumerated offenses involve moral turpitude and so indicate that “high crimes” must also involve moral turpitude. Id. at 763-64 (Dorsey, J., dissenting). Notably, other provisions of the Texas Constitution refer specifically to felonies.

See Tex. Const, art. Ill, § 14 (Privilege from arrest); Tex. Const, art. VI, § 5 (Privilege of voters from arrest). These two provisions and art. XVI, § 2 have appeared, in substantively identical forms, in every constitution since 1845. Thus, the framers of all our constitutions were certainly familiar with the term “felony.” If they had meant that persons be excluded from, inter alia, jury duty on the basis of any felony conviction, then presumably, they would have said so. Instead, however, they used the phrase “other high crimes.” It appears that something else was meant by that phrase.

What is meant by “other high crimes” can be determined using the rule of statutory construction known as ejus-dem generis, which holds that in interpreting general words which follow an enumeration of particular or specific things, the meaning of those general words should be confined to things of the same kind. See, e.g., Ex parte Roquemore, 60 Tex.Crim. 282, 131 S.W. 1101, 1103-04 (1910); Ex parte Muckenfuss, 52 Tex.Crim. 467, 107 S.W. 1131, 1131-32 (1908); see also 2A SUTHERLAND Stat. Const. §§ 47.17-47.22 (5th ed.1993); Black’s Law Dictionary 517 (6th ed.1990).

In order to harmonize the term “other high crimes” with “bribery, forgery, perjury,” that term must be limited to criminal conduct which demonstrates the same type of moral corruption and dishonesty inherent in the specified offenses. See Perez, 973 S.W.2d at 763-64 (Dorsey, J., dissenting); see also Otsuka v. Hite, 64 Cal.2d 596, 51 Cal.Rptr. 284, 414 P.2d 412, 421 (1966). In the instant case, the eom-plained-of juror was convicted of felony driving while intoxicated. This offense, which does not even require a culpable mental state, cannot reasonably be characterized as a “high crime.” See Tex. Pen.

Code §§ 49.04 & 49.09(b). Thus, even under the broadest reading of Tex. Const. art. XVI, § 2, the juror was not constitutionally disqualified from serving; rather, the disqualification was statutory. As such, there is no conflict in the instant case between art. XVI, § 2 and art. 44.46, and the latter is not unconstitutional as applied to appellant. The District Attorney’s and State Prosecuting Attorney’s grounds for review are sustained. Based on the foregoing, the judgment of the Court of Appeals is reversed, and the cause is remanded to that court for proceedings consistent with this opinion.

KELLER, J., filed a concurring opinion. HOLLAND, J., filed a concurring opinion, in which McCORMICK, P.J., and KEASLER, J., joined. . The only authority cited for this proposition was Welch v. State ex rel. Long, 880 S.W.2d 79, 82 (Tex.App.-Tyler 1994, writ denied), which states that "[i]n ordinary usage the phrase [‘high crime’] means nothing more than a serious or grave crime. This suggests, especially after the references to bribery, perjury, and forgery, that the phrase refers to felonies.” (Citations omitted.) .

"[Mr, Welch] argued including that undefined term following the crimes of bribery, perjury, and forgery implied the constitutional prohibition involved crimes of moral turpitude. Considering the nature of the privileges and duties denied the wrong-doers (public service, jury service, and the right to vote), I an inclined to agree with Mr. Welch.

Certainly the identifiable crimes listed involve moral turpitude, and the nature of the offices and rights denied the offenders are positions of elevated public trust inconsistent with those proven to be unworthy of such trust.” Perez, 973 S.W.2d at 764 (Dorsey, J., dissenting). . Previous versions of art. XVI, § 2: Tex. Const, of 1869, art. XII, § 2; Tex. Const, of 1866, art. VII, § 4; Tex. Const, of 1861, art. VII, § 4; Tex. Const, of 1845, art. VII, § 4. Previous versions of art. Ill, § 14: Tex. Const, of 1869, art. Ill, § 20; Tex. Const, of 1866, art. Ill, § 15; Tex Const, of 1861, art. Ill, § 16; Tex.

Const, of 1845, art. Ill, § 16. Previous versions of art. VI, § 5: Tex Const, of 1869, art. Ill, § 2; Tex Const, of 1866, art. Ill, § 2; Tex. Const, of 1861, art. Ill, § 3; Tex. Const, of 1845, art. Ill, § 3. . Judge Holland's concurring opinion states that the phrase "other high crimes” should not be limited to crimes which demonstrate moral corruption and dishonesty, on the basis of the word "or” in art. XVI, § 2. Post, at 225-28 (Holland, J., concurring). However, this approach ignores the use of the word "other” in that same provision.

That term specifically indicates that the term "high crimes” should be limited to the type of specific crimes listed in art. XVI, § 2.