Opinion

Young, Carroll Dwayne v. State

Court
Texas Court of Appeals, 1st District (Houston)
Filed
Jan 27, 2005
Status
Published
Cited by
0 cases
Authority
More cited than 35.2%

The opinion

Opinion Issued January 27, 2005

In The

Court of Appeals

For The

First District of Texas

______________

NO. 01-99-01147-CR

_____________

CARROLL DWAYNE YOUNG, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause No. 802485

CONCURRING OPINION ON REMAND

FROM THE COURT OF CRIMINAL APPEALS

I fully join the majority opinion in its discussion of appellant’s points of error

one through three. However, I write separately to concur in the majority’s decision

to overrule appellant’s points of error five through seven.

In points of error five through seven, appellant argues that the trial court erred

in denying his motion for new trial because the court erroneously refused to allow

him to present jurors as live witnesses, depriving him of an adequate appellate record

and his federal due process rights.

Appellant requests that this Court abate the

appeal “with orders to allow [him] to call jurors as witnesses at another motion for

new trial hearing.”

In support of his argument, appellant relies on Stephenson v. State , 494 S.W.2d

900, 909 (Tex. Crim. App. 1973), in which the Court of Criminal Appeals held that

a trial court erred in refusing to allow, in a hearing on a motion for new trial, juror

testimony concerning juror misconduct. In reaching its decision, the court discussed

the general rule that “a motion for new trial alleging jury misconduct must be

supported by the affidavit of a juror or some other person who was in a position to

know the facts.” Id . at 908-09. Although the court emphasized that the rule is

necessary “to discourage ‘fishing expeditions’ in an effort to impeach a jury verdict,”

it explained that “such an affidavit is not absolutely necessary but that the failure to

secure it might satisfactorily be explained or accounted for, in which event it would

be the duty of the trial court to hear evidence in support of the allegations.” Id .

(quoting Clark v. State , 289 S.W.2d 288, 290 (Tex. Crim. App. 1956)). The court

concluded that the trial court had erred because Stephenson’s counsel, in his motion

for new trial, had specified by name three jurors who had related juror misconduct to

him, and he explained that they had refused to sign affidavits, although they had

assured him that they would testify to the facts alleged if subpoenaed. Id . at 909.

Subsequently, in overruling a defendant’s contention that a trial court had

deprived him of effective assistance of counsel by “quash[ing] post-trial defense

subpoenas for jurors,” the Court of Criminal Appeals explained that, assuming that

the defendant was entitled to subpoena the jurors as witnesses under the Compulsory

Process Clause,

“the defendant would bear the burden of showing that the testimony

sought is material.” Jackson v. State , 992 S.W.2d 469, 476 (Tex. Crim. App. 1999).

The court then emphasized that Stephenson was distinguishable from Jackson’s case

because (1) Stephenson had provided evidence that the jurors actually possessed

information material to the motion for new trial and (2) his counsel had, in fact,

interviewed the jurors who had expressed a willingness to testify. Id .

Likewise, in the instant case, although appellant has satisfactorily explained his

inability to obtain affidavits from jurors, he has not shown that the jurors actually

possessed information material to his motion for new trial or that his counsel had

talked to jurors who had expressed a willingness to testify.

Although appellant does not expressly assert a compulsory process challenge,

he is in fact requesting that this Court order the trial court to allow him to compel all

12 jurors in his case to testify in a live hearing on his motion. However, it is well

established that, in order to exercise a compulsory process right, “[a] defendant must

make a plausible showing to the trial court, by sworn evidence or agreed facts, that

the witness’s testimony would be both material and favorable to the defense.”

Coleman v. State , 966 S.W.2d 525, 528 (Tex. Crim. App. 1998). It is true that a

defendant who has not had an opportunity to interview a witness may make the

necessary showing by establishing the matters to which the witness might testify and

the relevance and importance of those matters to the success of the defense. Id .

Nevertheless, the defendant must meet the burden of showing materiality and

favorableness to prevent “frivolous and annoying requests” that could make the

proceeding “endless and unduly burdensome on the Court and all officers thereof.”

Id . (quoting Ross v. Estelle , 694 F.2d 1008, 1011 (5th Cir. 1983)).

Even if appellant had expressly asserted a compulsory process challenge, his

argument that this Court should order the trial court to allow him to compel all 12

jurors in his case to testify in a live new-trial hearing fails. Although appellant

presented his affidavit and the affidavits of two of his holdover cell mates to the trial

court in support of his motion, a review of these affidavits reveals that the trial court

could have reasonably found that this evidence was simply too tenuous to support

bringing all 12 jurors back into court. Additionally, appellant did not demonstrate

that any of the 12 jurors actually would have provided testimony both material and

favorable to him in his effort to secure a new trial. The record thus supports an

implied finding by the trial court that compelling the jurors to come back to court

under these circumstances would have resulted in a fishing expedition to impeach

their verdict.

Accordingly, I concur in the majority’s conclusion that the trial did not abuse

its discretion in denying appellant’s motion for new trial on the grounds that the trial

court erroneously refused to allow appellant to present the jurors as live witnesses.

Terry Jennings

Justice

Panel consists of Justices Taft, Jennings, and Bland.

Justice Jennings, concurring.

Publish. Tex. R. App. P . 47.2(b).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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