holding that waiver is shown as matter of law if accused "(1) who has not yet retained or been appointed counsel (2) decides voluntarily not to rely on his right to counsel and (3) that decision is made with the understanding that he could remain silent and request a lawyer and that the State could use any statement he gave against him" (citations omitted)
How later courts described this case
- holding that waiver is shown as matter of law if accused "(1) who has not yet retained or been appointed counsel (2) decides voluntarily not to rely on his right to counsel and (3) that decision is made with the understanding that he could remain silent and request a lawyer and that the State could use any statement he gave against him" (citations omitted)
- stating, "when jurors converse with unauthorized persons about a case ..." (emphasis added)
- holding that burden of showing that waiver of counsel was made “voluntarily, knowingly, and intelligently” falls on State
- juror who received prejudicial information from sister testified that the statement would not influence her in reaching a verdict and that she had not communicated such information to the other jurors
Written by the judges who cited it.
The opinion
BAIRD, Judge,
concurring.
For the following reasons, I concur in the disposition of appellant’s grounds for rehearing four and seven through ten and otherwise join the majority opinion.
I.
In my opinion, circumstances may exist where an instruction similar to the one discussed in appellant’s fourth ground for rehearing would be warranted. Contrary to the majority, I do not believe such an *238 instruction would be a verdict or special plea under Tex.Code Crim.Proc.Ann. art. 37.07(l)(a). However, such an instruction was not warranted in the instant case because appellant’s confession was admissible. Therefore, appellant was not entitled to know whether the jury considered or disregarded the confession.
II.
In relation to appellant’s grounds for rehearing seven through ten, we should establish the following bright line rule: The trial judge does not err in refusing to permit counsel to question a venireperson who unequivocally states views regarding capital punishment that would prevent or substantially impair her performance as a juror.
For almost a quarter of a century, we have held that a trial judge errs by refusing to permit counsel to question a venire-person who has unequivocally stated that her views on capital punishment would prevent or substantially impair her performance as a juror. But the error has never risen to the level of reversible error. Huffman v. State, 450 S.W.2d 858, 860 (Tex.Cr. App.1970); Ortega v. State, 462 S.W.2d 296, 304 (Tex.Cr.App.1970); Burns v. State, 556 S.W.2d 270, 278 (Tex.Cr.App. 1977); White v. State, 629 S.W.2d 701, 706 (Tex.Cr.App.1981); Sawyers v. State, 724 S.W.2d 24, 29 (Tex.Cr.App.1986); and Felder v. State, 848 S.W.2d 85, 94 (Tex.Cr.App. 1992).
The only way we can reconcile the foregoing cases with the other cases pertaining to the improper limitation of voir dire examination is to conclude that the refusal is not error. To hold otherwise contradicts our holdings in Nunfio v. State, 808 S.W.2d 482 (Tex.Cr.App.1981), Woolridge v. State, 827 S.W.2d 900 (Tex.Cr.App.1992) and many more cases dealing with voir dire examination. Furthermore, we accomplish nothing by declaring something error if we habitually determine the error to be harmless. Consequently, we should establish the foregoing bright line rule and conclude that the trial judge did not err in refusing to permit appellant to question the venire-persons complained of in grounds for rehearing seven through ten because each venireperson unequivocally stated that their views on capital punishment would prevent or substantially impair their performance as jurors.
With these comments, I join the judgment of the Court.